JANE DOE * NO. 2020-CA-0320
VERSUS * COURT OF APPEAL HERBERT LEWIS, JUNIOR * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-07067, DIVISION “F” Honorable Christopher J. Bruno, Judge ****** Judge Paula A. Brown ****** (Court composed of Judge Edwin A. Lombard, Judge Regina Bartholomew- Woods, Judge Paula A. Brown)
Taetrece Harrison 650 Poydras Street, Suite 1400 PMB 136 New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/DEFENDANT-IN RECONVENTION/APPELLANT
Deborah Majeeda Snead ATTORNEY AT LAW P.O. Box 871821 New Orleans, LA 70187-1821
COUNSEL FOR DEFENDANT/PLAINTIFF-IN- RECONVENTION/APPELLEE
AFFIRMED 12/30/2020 PAB EAL RBW
This is a defamation suit. The basis of the defamation suit arises from
Plaintiff/Defendant-in-Reconvention/Appellant’s, Jane Doe, allegation that
Defendant/Plaintiff-in-Reconvention/Appellee, Herbert Lewis, Jr., had non-
consensual sex with her. In July 2014, Jane Doe filed a lawsuit against Mr. Lewis
seeking damages for alleged assault and battery, rape, and false imprisonment. Mr.
Lewis filed an answer and a reconventional demand against Jane Doe for
defamation. Mr. Lewis alleged that as a result of the false statements, regarding
the sexual assault and rape by Jane Doe to the District Attorney’s office, Mr.
Lewis’ friends, his employer, and the Louisiana State Nursing Board (the “nursing
board”), he suffered damages; he itemized his damages as fear of loss of liberty,
loss of income, actual loss of income, loss of consortium, mental anguish, and loss
of enjoyment of life. Mr. Lewis alleged that the false statements were made with
malicious intent to harm his reputation.
A bench trial was scheduled for January 21, 2020. Prior to trial, Jane Doe
filed two motions to continue trial, which were denied. The bench trial was held
on January 21, 2020. At the conclusion of the trial, the district court dismissed
1 Jane Doe’s case with prejudice, and found in favor of Mr. Lewis on his
reconventional demand, awarding Mr. Lewis $75,000.00 in general damages and
$18,462.14 in lost wages. The district court issued judgment, along with written
reasons for judgment, on January 27, 2020.1 From this judgment, Jane Doe
appeals, challenging only the district court’s finding of fault against her for
defamation of Mr. Lewis.2 In response, Mr. Lewis prays that this Court award him
attorney’s fees and costs for defending this appeal.
For the reasons to be discussed infra, we affirm the district court’s judgment,
and deny Mr. Lewis’ requests for attorney’s fees and costs.
DISCUSSION
Jane Doe asserts that the district court erred in denying her motions to
continue trial and in finding her at fault for defamation, assigning three errors:
1. The district court erred in denying the January 10 and January 21, 2020 motions to continue the January 21, 2020 trial date;
2. Mr. Lewis presented insufficient evidence to support his claim of defamation; and
3. Mr. Lewis’ award of damages was based on hearsay testimony and no supporting evidence.
We will address each assigned error in turn.
1 It is a “‘well-settled rule that the district court’s oral or written reasons for judgment form no part of the judgment, and that appellate courts review judgments, not reasons for judgment.’” Wooley v. Lucksinger, 09-0571, 09-0584, 09-0585, 09-0586, p. 77 (La. 4/1/11), 61 So.3d 507, 572 (quoting Bellard v. American Cent. Ins. Co., 07-1335, p. 25 (La. 4/18/08), 980 So.2d 654, 671). However, a court of appeal may review the trial court’s reasons for judgment to “gain insight” into the trial court’s judgment. Wooley, 09-0571, 09-0584, 09-0585, 09-0586, p. 78, 61 So.3d at 572; See also Bruno v. CDC Auto Transp., Inc., 19-1065, p. 9 (La. App. 4 Cir. 6/3/20), 302 So.3d 8, 13 n.11, writ denied, 20-00836 (La. 10/14/20), 302 So.3d 1118. 2 Jane Doe does not appeal her underlying case asserting the allegation of rape against Mr. Lewis, which the district court dismissed with prejudice. 2 Motions to Continue Trial
Jane Doe argues the district court erred in denying her motions to continue
trial on January 10, 2020, and January 21, 2020, respectively.
A trial judge has wide discretion in determining whether a motion for
continuance should be granted; thus, the standard of review in such cases is abuse
of discretion. Jordan v. Cmty. Care Hosp., 19-0039, 19-0040, pp. 22-23 (La. App.
4 Cir. 7/24/19), 276 So.3d 564, 582 (citations omitted).
January 7, 2020 motion
Trial was scheduled for January 21, 2020. Jane Doe filed a written motion
to continue trial on January 7, 2020. Counsel3 for Jane Doe requested the matter
be continued for three months from the January 21, 2020 trial date. Counsel
asserted that an out-of-state material witnesses could not be served or contacted
and another witness, who was served, would be out of town the day of trial. A
hearing on the motion was held on January 10, 2020. At the hearing, counsel for
Jane Doe stated:
[W]e had some witnesses who previously we spoke to who said that they were going to be here. . . . [M]y client . . . previously purchased plane tickets for at least one of the witnesses who we tried to serve I think. . . . We have also tried to call the witnesses. We have tried to e-mail the witnesses.
Counsel for Mr. Lewis objected to the continuance and pointed out that Jane Doe’s
petition for damages was filed in 2014, and the case had been first set for trial in
2018, and again in 2019. The district court denied the motion, but postponed the
3 Vercell F. Fiffie represented Jane Doe at the trial proceedings. She is represented by Taetrece Harrison in the appellate proceeding.
3 start of trial until 1:00 p.m. on January 21, 2020, and offered to allow Jane Doe to
use the depositions of the witnesses.4
Louisiana Code of Civil Procedure Article 1602 sets forth two mandatory
grounds for granting of a continuance:
A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.
See Pinnace v. Francingues, 404 So.2d 1347, 1348 (La. App. 4th Cir.
1981)(citation omitted)(wherein this Court held that the wording of La. C.C.P. art.
1602 was mandatory). Interpreting Article 1602, this Court, in Loicano v.
Maryland Cas. Ins. Co., 301 So.2d 897, 901 (La. App. 4th Cir. 1974), opined, “As
we view the matter, the test for production of a material witness is not simply that a
subpoena has or has not been granted, but that the witness has absented himself
contrary to the arrangement made by the party for the witness to appear.” A review
of the record does not reflect that the out-of-state witnesses were subpoenaed nor
absented themselves contrary to an arrangement with Jane Doe. If a mandatory
ground for a continuance is not proven, as in this case, “[a] continuance may be
granted in any case if there is good ground therefor.” La. C.C.P. art. 1601. Review
of the record indicates that Jane Doe had ample time from the first and second trial
settings to secure her witnesses. Additionally, the district court postponed the start
time of trial to help accommodate Jane Doe’s witnesses. We conclude the district
4 The district court advised that since the witnesses were out of state, the only way to compel them to testify at trial was to “fly there and take letters of [sic] rogatory and serve them with a subpoena and take their depositions.”
4 court did not abuse its discretion in denying the January 7, 2020 motion to continue
trial.
January 21, 2020 motion
At the beginning of the trial, counsel for Jane Doe, again, filed a written
motion to continue trial, arguing several grounds.
First, counsel re-urged that material witnesses were not present. The record
does not reflect what steps, if any, counsel for Jane Doe took to have the witnesses
present since the January 10, 2020 hearing. In addition, the district court allowed
the use of the deposition testimony of three of Jane Doe’s witnesses, in lieu of the
witnesses being present for trial.5 In Hebert v. Travelers Ins. Co., 245 So.2d 563,
565 (La. App. 3rd Cir. 1971), the appellate court found no error by the trial court in
denying the continuance of trial where four witness, who were not subpoenaed,
testified by deposition.
Second, Jane Doe asserts the district court erred in denying the continuance
because she had a valid medical reason. Counsel argued that Jane Doe, who lived
out-of-state, could not attend the trial because her doctor advised her not to fly due
to a sudden on-set of back pain. Counsel explained that Jane Doe bought a plane
ticket on January 17, 2020, to fly to New Orleans for the trial; the next day, she
experienced back pain, she went to the doctor, and the doctor ordered her to bed
rest. Although Counsel attached the doctor’s note to his motion to continue, the
district court stated that there was no way to authenticate the doctor’s note.
Counsel for Mr. Lewis offered for Jane Doe to testify remotely. Jane Doe’s
5 At trial, the depositions of three witness, who were either present before or after the sexual encounter, were offered, filed, introduced, and admitted into evidence. The testimony by these witnesses, Avril Sanders, and his girlfriend, Santrice Bradford, and Shermayne Sanders, who were friends of Jane Doe and present at the birthday party, pertained to the allegation of simple rape. 5 counsel countered that “[i]f she is not here, then I think that would be a major
disservice to her and to the -- Mr. Lewis in the matter being that one of -- the
plaintiff and defendant would not be here to be questioned in court and in front of
the Judge.”
“[T]he mere absence of a party from court is not [a] sufficient ground for
granting a continuance.” Mongrue v. Mongrue, 398 So.2d 1199, 1201 (La. App.
4th Cir. 1981)(citations omitted). In the case sub judice, the district court denied
the continuance but allowed Jane Doe to testify at trial via video attendance, where
counsel had the ability to question and cross-examine her. We find the district
court did not abuse its discretion in denying the January 21, 2020 motion to
continue trial.
This claim lacks merit.
Insufficient Evidence
Jane Doe asserts that “the trial court committed manifest error and was
clearly wrong in finding [Mr. Lewis] provided sufficient evidence to support his
claim of defamation.”
Standard of review
This case involves factual determinations by the district court; thus, the
manifest error standard of review applies. See Thompson v. Bank One of Louisiana,
NA, 13-1058, p. 9 (La. App. 4 Cir. 2/26/14), 134 So.3d 653, 660. In applying the
manifest error standard, “[t]he issue to be resolved by the reviewing court is not
whether the trier of fact was right or wrong, but whether the factfinder’s
conclusion was a reasonable one.” Zito v. Advanced Emergency Med. Servs., Inc.,
11-2382, p. 5 (La. 5/8/12), 89 So.3d 372, 375 (citation omitted). “If the factual
findings are reasonable in light of the record reviewed in its entirety, a reviewing 6 court may not reverse even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.” Id. (citation omitted). See
also, Creole Gardens, L.L.C. v. Schreiber, 19-0105, 2019 WL 4924305, at *3 (La.
App. 4 Cir. 9/25/19), writ denied, 19-01897 (La. 1/22/20), 291 So.3d 1047 (citing
Gaines v. Wilson, 17-0895, p. 5 (La. App. 4 Cir. 3/21/18), 240 So.3d 1010, 1014)
(wherein this Court explained that “[i]n order to reverse the findings of the
factfinder, the appellate court, upon a review of the record in its entirety, must
determine that (1) no reasonable factual basis exists for the district court’s factual
findings and (2) the findings must be clearly wrong.”). “However, where
documents or objective evidence so contradict the witness’ story, or the story itself
is so internally inconsistent or implausible on its face, that a reasonable factfinder
would not credit the witness’ story, the court of appeal may find manifest error or
clear wrongness, even in a finding purportedly based upon a credibility
determination.” Zito, 11-2382, p. 5, 89 So.3d at 375 (citations omitted).
Defamation defined
This Court, in Thompson, 13-1058, pp. 10-11, 134 So.3d at 661 (citation
omitted), explained that “[b]y definition, a statement is defamatory if it tends to
harm a person’s reputation, lowers the person in the estimation of the community,
deters others from associating with the person, or otherwise exposes the person to
contempt or ridicule.” There are five elements that a party asserting a defamation
claim must prove by a preponderance of the evidence: (1) defamatory words; (2)
unprivileged publication or communication to a third party; (3) falsity; (4) malice,
actual or implied; and (5) resulting injury. Muller v. Fort Pike Volunteer Fire
Dep’t, 19-0156, p. 14 (La. App. 4 Cir. 6/26/19), 275 So.3d 927, 936-37; Kennedy
v. Sheriff of E. Baton Rouge, 05-1418, p. 4 (La. 7/10/06), 935 So.2d 669, 674. “If 7 even one of the required elements [of defamation] is found lacking, the cause of
action fails.’” Muller, 19-0156, p. 14, 275 So.3d at 937 (quoting Costello v. Hardy,
03-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 140).
An unprivileged communication is one that is not privileged. In Kennedy v.
Sheriff of E. Baton Rouge, 05-1418, pp. 16-17 (La. 7/10/06), 935 So.2d 669, 681-
82, the Supreme Court explained:
In Louisiana, privilege is a defense to a defamation action. Costello, 03-1146 at 15, 864 So.2d at 141. . . Privileged communications are divided into two general classes: (1) absolute; and (2) conditional or qualified. Madison v. Bolton, 234 La. 997, 102 So.2d 433, 439 n. 7 (1958). An absolute privilege exists in a limited number of situations, such as statements by judges and legislators in judicial and legislative proceedings. Id. A conditional or qualified privilege arises in a broader number of instances. Id. . . . It is impossible to reduce the scope of a conditional or qualified privilege to any precise formula. Id. Nevertheless, the elements of the conditional privilege have been described as “good faith, an interest to be upheld and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only.” Madison, 102 So.2d at 439 n. 7. The privilege, it has been held, “arises from the social necessity of permitting full and unrestricted communication concerning a matter in which the parties have an interest or duty, without inhibiting free communication in such instances by the fear that the communicating party will be held liable in damages if the good faith communication later turns out to be inaccurate.” Toomer [v. Breaux], 146 So.2d [723] at 725 [(La. App. 3 Cir.1962)].
In Costello, 03-1146, p. 16, 864 So.2d at 142 n.13, the Supreme Court held that a
privileged communication is an affirmative defense which must be specially pled,
explaining that it “raises a new matter which, assuming the allegations in the
petition to be true, constitutes a defense to the defamation action and will have the
effect of defeating the defamation claim.” See also Sullivan v. Malta Park, p. 11,
14-0823 (La. App. 4 Cir. 12/10/14), 156 So.3d 1200, 1207 (citing La. C.C.P. art.
1005 and Costello, 03-1146, p. 16, 864 So.2d at 142 n.13)(wherein this Court held
that “[a] qualified privilege is an affirmative defense to a cause of action for 8 defamation, which must be specially pled in a defendant’s answer.”); Alexander v.
Blue Williams, L.L.P., 18-0776, 2019 WL302078, at *5 n.8 (La. App. 4 Cir.
1/23/19), writ denied, 19-00432 (La. 9/6/19), 278 So.3d 370, and writ denied, 19-
00435 (La. 9/6/19), 278 So.3d 372, and writ denied, 19-00431 (La. 9/6/19), 278
So.3d 968.
In Louisiana, defamatory words have traditionally been divided into two
categories. The first category are words that are susceptible to a defamatory
meaning. The second category are words that are defamatory per se. “[W]ords
that are defamatory per se are those which 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.”
Thompson, 13-1058, p. 11, 134 So.3d at 661-62. In Thompson, this Court
explained that “[p]ublication means the communication of non-privileged
defamatory words to even one single person besides the party defamed.” Id., 13-
1058, p. 14, 134 So.3d at 663 (citations omitted). The element of publication can
be proven by direct or circumstantial evidence. Id. (citation omitted). When a
plaintiff proves publication of words that are defamatory per se, “[i]njury may . . .
be presumed” and “falsity and malice (or fault) are presumed” but may be rebutted
by the defendant. Id., 13-1058, p. 11, 134 So.3d at 662. “Even when a plaintiff
makes a prima facie showing of the essential elements of defamation, recovery
may be precluded if the defendant shows either that the statement was true, or that
it was protected by a privilege, absolute or qualified.” Costello, 03-1146, p. 15, 864
So.2d at 141 (citation omitted).
Trial testimony
9 The pertinent witnesses at trial were Jane Doe, Mr. Lewis, Tara Holland, and
Caroline Moore.
Jane Doe resided in New Orleans, Louisiana, in 2013. Mr. Lewis resided in
Baton Rouge, Louisiana. The two had been friends for several years and both were
registered nurses. On July 20, 2013, Jane Doe had a birthday party, which Mr.
Lewis attended. Prior to the party, Jane Doe and Mr. Lewis discussed that he
could stay at her house and sleep on the couch in the living room, if he did not
want to drive back to Baton Rouge. Jane Doe rented a party bus for the party.
Jane Doe, Mr. Lewis, and other guests were drinking alcohol and dancing on the
party bus. After returning home, Jane Doe and some of her guests went to a
nightclub. Mr. Lewis stayed at Jane Doe’s house and went to sleep in the extra
bedroom. When Jane Doe and several of her guests, including a couple, returned,
Mr. Lewis was awakened. The couple planned to sleep in the extra bedroom.
After the couple retired to the extra bedroom, Mr. Lewis and Jane Doe had sex.
Jane Doe alleged it was non-consensual; Mr. Lewis alleged it was consensual.
On July 24, 2013, Jane Doe filed a police report with the New Orleans
Police Department, alleging Mr. Lewis raped her. Mr. Lewis was arrested on the
charge of simple rape five days later, on December 31, 2013. Mr. Lewis testified
he spent around 8 to 10 hours in jail and was released after posting bond in the
approximate amount of $1,200.00. In 2014, the Orleans Parish District Attorney
refused the charges against Mr. Lewis.
At trial, Jane Doe’s attorney admitted that Jane Doe contacted Mr. Lewis’
professional licensing board, the nursing board, and informed it of the alleged rape
by Mr. Lewis. Mr. Lewis stated that after he was arrested he also contacted the
nursing board to inform it of the pending charge as he was required to do. Mr. 10 Lewis recalled Jane Doe had contacted the nursing board the week before he did.
Due to the accusation, the nursing board conducted its own investigation.
Mr. Lewis was employed by the Louisiana Department of Public Safety and
Corrections where he worked as a registered nurse at the Louisiana Correctional
Institute for Women (“LCIW”). Mr. Lewis testified that Jane Doe contacted his
work multiple times. Ms. Holland, the Assistant to the Warden at the LCIW,
testified that she received a letter, via fax, from Jane Doe stating that Mr. Lewis
sexually assaulted her. Ms. Holland gave the letter to the Warden of LCIW. She
recalled Mr. Lewis was placed on administrative leave because of the accusation.6
Mr. Lewis testified he was on administrative leave for 544 hours and lost wages as
a result.
One of Mr. Lewis’ co-workers, Caroline Moore, who worked for the
Department of Public Safety and Corrections as a nurse practitioner, testified she
knew Jane Doe because she had taught Jane Doe at Southern University School of
Nursing. Ms. Moore stated that Jane Doe contacted her while Ms. Moore was at
work. During their conversation, Jane Doe informed Ms. Moore she was pressing
rape charges against Mr. Lewis.
The district court found Jane Doe’s accusation that Mr. Lewis committed
simple rape was defamation per se, reasoning in pertinent part:
[Jane Doe]’s accusation of rape qualifies as defamation per se. She communicated this allegation to numerous people. [Jane Doe] contacted the Nursing Board, which resulted in Mr. Lewis’ suspension. She also contacted his employer, which also resulted in his suspension. Ms. Tara Holland (“Ms. Holland”), the Assistant to the Warden at the Louisiana Correctional Institute for Women, testified that she received a fax from [Jane Doe] stating that Mr.
6 At trial, Ms. Holland was asked, “Do you recall as a result of that letter if any action was taken by DOC?” Ms. Holland responded, “Yes, ma’am. He was placed on administrative leave.”
11 Lewis sexually assaulted her, which she passed on to the Warden. [Jane Doe] also contacted Ms. Moore, a nurse practitioner for the Department of Corrections, under the guise of seeking employment. She then told Ms. Moore that though she was interested in employment but [sic] she could not work at the prison because Mr. Lewis worked there. [Jane Doe] created a false reason to tell Ms. Moore about the alleged rape. Her statement surprised Ms. Moore; she did not know anything about the alleged rape. Ms. Moore taught [Jane Doe] at Southern University. [Jane Doe] told numerous friends about the alleged rape.
Jane Doe, however, contests whether Mr. Lewis proved the element of
unprivileged publication/communication to a third party. Because this is the only
element of defamation Jane Doe contests, our review is limited to this element.
Publication/Communication
First, Jane Doe, through her counsel, admitted contacting the nursing board
and informing it of her allegation against Mr. Lewis.7 In addition, Mr. Lewis
testified he was required to notify the nursing board of his arrest. On appeal, Jane
7 During Jane Doe’s case-in-chief, she was not questioned by the parties concerning the defamation action, and she was not called as witness in Mr. Lewis’ case-in-chief in his reconventional demand.
12 Doe, however, argues that the communication to the nursing board does not
support a claim for defamation. As discussed supra, the publication element of a
defamation action requires an unprivileged publication or communication of
defamatory words to someone other than the person defamed. Jane Doe essentially
argues that her communication to the nursing board was a conditional or qualified
privileged communication. Specifically, Jane Doe asserts:
First, Mr. Lewis admittedly stated during his deposition that he intended to notify the nursing board because he was required to do so. However, Mr. Lewis stated that Ms. Doe had already notified the nursing board of his arrest for rape. This admission by Mr. Lewis that he was required to report this incident proves that this was not defamation. Because Ms. Doe reported the arrest to the nursing board before Mr. Lewis does not make more defamation because she reported and less defamation when he planned to report it.
In her answer to Mr. Lewis’ reconventional demand, Jane Doe asserted, as an
affirmative defense, that Mr. Lewis had no right of action against her for
defamation because “reporting was required by law or rules that JANE DOE must
comply with.” In addition, Jane Doe unsuccessfully urged this defense in a motion
for summary judgment seeking to dismiss Mr. Lewis’ defamation action on the
ground that she enjoyed a conditional privilege. She argued that as a registered
nurse she had a duty to report Mr. Lewis’ conduct, citing La. Admin. Code tit. 46
Pt XLVII, Section 306(T)(8)(m) which provides the nursing board will have
grounds for disciplinary proceedings against a nurse who “fail[s] to report, through
the proper channels, facts known regarding the incompetent, unethical, or illegal
practice of any health care provider.”(emphasis added).8
8 After a hearing on the motion for summary judgment was held December 20, 2019, the district court denied the motion. Jane Doe sought review by this Court. While the writ was pending, trial on the merits of Jane Doe’s and Mr. Lewis’ lawsuits was held on January 21, 2020. This Court denied the writ application, Doe v. Lewis, 20-0084 (La. App 4 Cir. 4/30/2020)(unpubl.).
13 However, as noted above, to enjoy a conditional privilege, as affirmatively
asserted by Jane Doe, she must show that the communication/publication was
made in good faith. See Kennedy, 05-1418, p.17, 935 So.2d at 681 (quoting
Madison, 102 So.2d at 439 n.7)(the elements of the conditional or qualified
privilege have been described as “‘good faith, an interest to be upheld and a
statement limited in scope to this purpose, a proper occasion, and publication in the
proper manner and to proper parties only.’”). In the case sub judice, the district
court found that Jane Doe failed to prove the rape accusation against Mr. Lewis;
the district court reasoned that it did not find Jane Doe’s testimony credible and
“she . . . created a fictional account of her encounter with Mr. Lewis.” Jane Doe
did not challenge this finding.
Accordingly, we conclude Jane Doe failed to prove–at the time she
communicated the criminal accusation against Mr. Lewis to the nursing board–
that the communication was in good faith. Due to her failure to show the
communication to the nursing board was in good faith, she does not meet the
requirements of a conditional privileged communication. Thus, the record
supports that Jane Doe communicated unprivileged defamatory per se words to a
person other than Mr. Lewis.
Second, Jane Doe, through her counsel, denied contacting Mr. Lewis’
employer. Jane Doe asserts that Ms. Holland’s testimony is hearsay, and “[i]t is
impossible to verify the veracity of her testimony as to receiving a fax because no
documentation was provided as evidence to the trial court.” Jane Doe contends
the district court erred in relying on Ms. Holland’s testimony. At trial, counsel for
Jane Doe objected to Ms. Holland’s testimony regarding the contents of the letter,
arguing it was inadmissible hearsay because the fax was not produced and offered 14 at trial. The district court overruled Jane Doe’s objection. The district court
explained that Ms. Holland’s testimony, regarding the content of the faxed
document, was to authenticate that a communication was made by Jane Doe to
LCIW regarding Mr. Lewis. In addition, the district court limited Ms. Holland’s
testimony to receipt of the letter, the contents of the letter, and the consequences
Mr. Lewis faced as a result of the contents of the letter.
“Hearsay is defined as ‘a statement, other than one made by the declarant
while testifying at the present trial or hearing, offered into evidence to prove the
truth of the matter asserted.’” State in Interest of M.B., 19-0931, p. 11 (La. App. 4
Cir. 2/12/20), 292 So.3d 930, 938, writ denied, 20-00422 (La. 5/7/20), 296 So.3d
611 (citing La. C.E art. 801). A “statement” includes either oral or written
assertions. La. C.E. art. 801(A). Testimony concerning the contents of a written
communication is hearsay unless the author is present to be cross-examined.
See State v. Joya, 354 So.2d 543, 545 (La. 1978). However, an exception to the
hearsay rule allows a person to testify regarding the content of a document “to
prove receipt of the information and not the truth of the statement.” State v. Joya,
354 So.2d at 545 (citations omitted). “‘[E]videntiary rulings by the trial court are
reviewed under an abuse of discretion standard.’” Hohensee v. Turner, 14-0796, p.
5 (La. App. 4 Cir. 4/22/15), 216 So.3d 883, 886 (quoting 727 Toulouse, L.L.C. v.
Bistro at the Maison De Ville, L.L.C., 12-1014, p. 19 (La. App. 4 Cir. 8/21/13), 122
So.3d 1152, 1163) fter a review of the record and applicable law, we find no
abuse of discretion by the district court in allowing the testimony of Ms. Holland.9
9 The district court also found that Ms. Holland’s testimony was admissible as impeachment testimony in light of Jane Doe counsel’s assertion that Jane Doe did not recall communicating the rape accusation to Mr. Lewis’ employer.
15 Third, Jane Doe challenges Ms. Holland’s credibility. She asserts that there
is a discrepancy between Mr. Lewis’ deposition testimony, wherein he testified
that an arrest report was faxed to his employer by Jane Doe, and Ms. Holland’s
trial testimony that Jane Doe faxed a letter. However, Mr. Lewis’ deposition was
not admitted into evidence at trial, and Mr. Lewis nor Ms. Holland were
questioned regarding this discrepancy.10 Thus, the record before this Court does
not support Jane Doe’s assertion there was a discrepancy.
Finally, even assuming the district court erred in considering Jane Doe’s
communication to the nursing board and to Mr. Lewis’ employer through Ms.
Holland’s testimony to support the element of publication, Ms. Moore’s testimony,
which was unrebutted and uncontested, indicated that Jane Doe communicated the
per se defamatory statement to her.
Consequently, we conclude the district court did not err in finding that the
element of an unprivileged communication to a third party was met. This claim
lacks merit.
Award of damages
Jane Doe asserts that the district court erred in awarding Mr. Lewis general
damages and lost wages, based on hearsay testimony and no supporting evidence.
Lost wages
Jane Doe contends Mr. Lewis failed to prove his earnings and loss of
income. Jane Doe argues that Mr. Lewis failed to testify as to the wages he earned
at his part-time job, while he was suspended from LIWC:
10 Although Mr. Lewis’ deposition was part of the appellate record, it was not admitted into evidence at trial. See La. C.C.P. art. 1450, uses of depositions at trial.
16 Mr. Lewis contradicted himself regarding his employment because during the deposition he stated that he continued working while there was a pending investigation but during the trial, he never testified about his part-time job, he only testified regarding loss wages from his prior job with the Department of Correction.
Jane Doe, in support of her argument, quotes Mr. Lewis’ deposition testimony.
However, as previously noted, Mr. Lewis’ deposition was not admitted into
evidence at trial nor was it used to impeach him; thus, it may not be considered by
this Court.
“A claim for lost wages need not be proven with mathematical certainty; it
only requires such proof which reasonably establishes plaintiff’s claim, which
includes plaintiff’s own reasonable testimony.” Wendel v. Travelers Ins. Co., 14-
0002, p. 8 (La. App. 4 Cir. 10/8/14), 151 So.3d 828, 835 (citations omitted). “The
trier of fact is entitled to wide discretion in assessing the appropriate amount of
special damages, which is then given great deference on review.” Id., 14-0002, p.
7, 151 So.3d at 834. In support of his loss wage claim, Mr. Lewis testified that his
employer put him on administrative leave due to Jane Doe’s accusation. Mr.
Lewis stated that, according to human resources from his employer, he was
suspended for 544 hours and lost $18,462.14 in wages. Based on Mr. Lewis’
testimony, the district court awarded lost wages in the amount of $18,462.14. We
find no abuse of discretion.
General damages
Turning to Mr. Lewis’ award of $75,000.00 in general damages, Jane Doe
asserts the district court abused its discretion in determining Mr. Lewis’ general
damage award as it was not supported by the evidence presented at trial. Jane Doe
contends that Mr. Lewis, during his deposition, only testified that he had trouble
17 sleeping, and Mr. Lewis failed to prove any damage to his reputation due to the
alleged defamation.
“A plaintiff claiming defamation must present competent evidence of the
injuries suffered,” and “demonstrate that the defamatory statements were a
substantial factor in causing the harm.” Thompson, 13-1058, p. 18, 134 So.3d at
665 (citation omitted). General damages for defamation include injury to
reputation, personal humiliation, embarrassment, mental anguish, and suffering.
Id., 13-1058, p. 19, 134 So.3d at 666 (citation omitted). Louisiana has recognized
that injury to one’s reputation may result simply from the character of the
defamatory words, although proof of pecuniary loss is impossible. Smith v. Atkins,
622 So.2d 795, 800 (La. App. 4th Cir. 1993)(citations omitted). “Defamation
damages must be proved by competent evidence, but there is no need to establish
the actual pecuniary value of the injury suffered.” Lege v. White, 619 So.2d 190,
191 (La. App. 3rd Cir. 1993)(citation omitted). Expert testimony is not necessarily
required to support an award for general damages in a defamation suit. Arnaud v.
Dies, 16-642, p. 14 (La. App. 3 Cir. 12/7/16), 208 So.3d 1017, 1027.
This Court set forth the standard of review for damage awards in Sommer v.
State, Dep’t of Transp. & Dev., 97-1929, p. 17 (La. App. 4 Cir. 3/29/00), 758 So.
2d 923, 935:
The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La. App. 5 Cir.1991).
Mr. Lewis testified how he suffered, following his arrest for the alleged
rape:
18 Well, my marriage has definitely suffered dealing with -- I coach soccer. I have two daughters. I deal with them. I cannot have their friends sleep over. I cannot have my daughter’s cousin sleep over with me being there. . . I am one bad dream from a little girl just thinking someone was there. I am one lie away from being in jail. That is really hard for me to deal with.
I was arrested[.] [I] did . . . go to Orleans OPP for something I did not do. It does affect my every day dealings when it comes down to being in the presence of women . . . If a woman walks in my office alone, I will get up and open my door if she closes my door . . . I do not want to put myself in a position where someone can do that to me again.
Mr. Lewis testified he had issues sleeping, eating, and dealing with his problems,
and as a result, he spoke to a counselor. Mr. Lewis stated that he lived in fear as a
result of going to jail for something he did not do. Mr. Lewis continued that he
still has trouble sleeping and the prolonged matter has worn him down.
In addition, Ms. Moore, when questioned about how Mr. Lewis acted when
he returned to work after his administrative leave, responded that Mr. Lewis was
embarrassed and uncomfortable “returning with those allegations over his head.”
She continued that prior to being accused of rape, Mr. Lewis was very friendly, but
that changed for a long time after he was accused.
In its written reasons, the district court wrote in pertinent part:
[M]s. Moore testified that Mr. Lewis was humiliated and embarrassed.
*** [M]r. Lewis became isolated and depressed. His relationship with his girlfriend was strained. Mr. Lewis was extremely guarded about socializing, fearing that someone may have heard about his arrest for simple rape. This Court finds that Mr. Lewis has been through a horrible and ostracizing experience.
We find the record supports the district court’s findings. Mr. Lewis
presented competent evidence of the injuries he suffered as a result of the
19 defamatory statements and the statements were a substantial factor in causing the
harm.
With regard to the award for general damages, we reviewed reported cases
in which damages for defamation have been considered by Louisiana courts when
defamatory accusations of criminal conduct were at issue. Although there were not
many recent reported cases, we find these cases still instructive. In Johnson v.
Lanoix, 03-143 (La. App. 5 Cir. 5/28/03), 847 So.2d 1283, the Fifth Circuit
reviewed general damage awards in cases that involved defamatory words that
were criminal accusations:
In Connor [, et al] v. Scroggs [, et al], [35,521 (La. App. 2 Cir. 06/12/02), 821 So.2d 542, 552], the Connors alleged that their four- year-old daughter, C.C., was molested by the Scroggs during an overnight stay at their home. The Second Circuit affirmed the trial court's award of $35,000.00 to the Scroggs for their embarrassment and humiliation, considering the seriousness of the allegations, the small community in which they were made, and the length of time which it ultimately took the Scroggs to clear their names.
In Trentecosta v. Beck, 95-0096 (La. App. 4 Cir. 02/25/98), 714 So.2d 721, on remand from the Louisiana Supreme Court for determination of damages, the Fourth Circuit awarded plaintiff $50,000.00 for a defamatory statement by a police officer’s statement that plaintiff was guilty of milking thousands of dollars from charities using his Bingo Hall over the years. . . .
*** In Smith v. Atkins, 622 So.2d 795 (La. App. 4 Cir. 1993), the Fourth Circuit increased a defamation award to $5,000 on proof that a college teacher referred in class to plaintiff, a female student, as a “slut,” causing negative reactions by her fellow students and requiring plaintiff to seek psychiatric help for depressive disorder.
Id., 03-143, pp. 10-11, 847 So.2d at 1288 (footnote omitted). In 1995, in
Jeansonne v. Detillier, 94-903 (La. App. 5 Cir. 5/10/95), 656 So.2d 689, the
plaintiff sought review of the trial court’s reduction of an $80,000 jury award to
$50,000, for defamation involving a false accusation of rape. The Fifth Circuit
20 noted the plaintiff spent less than ten hours in jail, he was harassed at work because
of the incident, and he received harassing phone calls. The plaintiff did not consult
a psychiatrist, but consulted a doctor about sleep problems. The Fifth Circuit
concluded that that the $80,000 jury award was excessive and the judgment
reducing it to $50,000, was “the highest amount supportable by the record and
prior jurisprudence.” Id., 94-903, p. 9, 656 So.2d at 693. More recently, the Third
Circuit, in Cluse v. H & E Equip. Servs., Inc., 09-574 (La. App. 3 Cir. 3/31/10), 34
So.3d 959, awarded the plaintiff falsely accused of theft of property valued at
$68,000.00 general damages in the amount of $25,000.00. In addition, this Court,
in Thompson, 134 So.3d 653, awarded the plaintiff $150,000.00 in general
damages when the church, in which the plaintiff served as its preacher, falsely
accused the plaintiff of embezzling church funds, and of being a thief and a liar.
In the case sub judice, based on Mr. Lewis’ and Ms. Moore’s testimony, as
well as a review of damages awarded in similar cases, the general damages award
of $75,000.00 is not so high that it “shocks the conscience.” We conclude that the
district court did not abuse its discretion in awarding Mr. Lewis $75,000.00 in
general damages and lost wages in the amount of $18,462.14.
Attorney’s fees on appeal
In his appellee’s brief, Mr. Lewis requests reasonable attorney’s fees and
costs be awarded by this Court, citing La. C.C.P. art. 2164.11 In Phipps v. Schupp,
21 17-0067, pp. 3-4 (La. App. 4 Cir. 7/19/17), 224 So.3d 1019, 1022, this Court
denied a request for attorney’s fees and costs made for the first time in the
appellee’s brief, writing:
The proper procedure for an appellee to request frivolous appeal damages is to file either an answer to the appeal or a cross-appeal. Roger A. Stetter, LA. PRAC. CIV. APP. § 11:18 (2016) (“Stetter”)(citing La. C.C.P. art. 2133 and Galle v. Orleans Parish School Bd., 623 So.2d 692 (La. App. 4 Cir. 1993)). . . .“[a]n appellee cannot recover damages for taking a frivolous appeal if the damages are first requested in the appellee’s brief.” Stetter § 11:19. “An appellee’s brief does not constitute an answer or appeal for purposes of requesting frivolous appeal damages.” Stetter, § 11:19, (citing Sears, Roebuck & Co. v. Appel, 598 So.2d 582 (La. App. 4 Cir. 1992)).[12]
Mr. Lewis failed to file an answer to the appeal or a cross-appeal. Thus, Mr.
Lewis’ request to be awarded attorney’s fees and costs is denied.
CONCLUSION
The district court’s judgment is affirmed. In addition, Mr. Lewis’ requests
for attorney’s fees and costs is denied.
AFFIRMED