John Glenn Raymond v. Felix Lasserre, Sr.

• Court: Louisiana Court of Appeal
• Decided: March 6, 2023
• Docket: 2022CA0793
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 0793

JOHN GLENN RAYMOND

VERSUS

FELIX LASSERRE, SR.

MAR 0 6 2023 Judgment Rendered:

On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2021- 14303 Honorable Richard A. Swartz, Judge Presiding

John Gienn Raymond Plaintiff/ Appellee In Proper Person John Glenn Raymond Lacombe, Louisiana

John B. Wells Counsel for Defendant/ Appellant Slidell, Louisiana Felix Lasserre, Sr.

BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.

buA u & 645 L McCLENDON, J.

The instant appeal was filed by defendant -appellant, Felix Lasserre, Sr., from the

trial court's judgment granting an order of protection in favor of plaintiff -appellee, John

Glenn Raymond. Plaintiff -appellee filed an answer to the appeal. For the reasons that

follow, we affirm the judgment on appeal and dismiss the answer to the appeal.

FACTUAL AND PROCEDURAL HISTORY

On October 8, 2021, plaintiff filed a verified " Petition for Protection from Stalking

or Sexual Assault" pursuant to LSA- R. S. 46: 2171, et seq., the " Protection from Stalking

Act." Therein, plaintiff sought a protective order on his own behalf against defendant.

According to plaintiffs petition for protection, beginning in August of 2021 and continuing

through the date of filing, defendant harassed plaintiff; made or sent telephone calls,

texts, emaiis, or other electronic communications to plaintiff; sent messages via a third

party, letters, pictures, or public posts to social media; implied or threatened plaintiff with

bodily injury; and stalked, harmed, or threatened to harm plaintiff, a member of plaintiff's

family, or plaintiffs acquaintance. Plaintiff further alleged that the most recent incidents

of abuse included " cyberstalking and text threats to [ plaintiff] personally and also to

plaintiffs] church [ and school, including] an indirect threat to [ plaintiff's] church

members, employees, teachers, and students." Plaintiff described past incidents of abuse

as "'[ m] ultiple texts and social media posts."

Although plaintiff's petition for protection did not explain the history between the

parties, the record reflects that plaintiff is a minister, or " Reverend," of New Horizon

Church ( the church), as well as the Headmaster of Lakeside Christian Academy ( the

school). For a period of time preceding the parties' quarrel, defendant and his family

were members of the church, and defendant's wife ( Mrs. Lasserre) was employed in an

administrative capacity at the school. As part of Mrs. Lasserre' s compensation, the

Lasserre' s five children attended the school without paying tuition. At some point,

defendant and his family stopped attending the church, and Mrs. Lasserre' s employment

contract with the school was not renewed. Mrs. Lasserre learned that her employment

contract had not been renewed on July 26, 2421. The interactions between the parties

2 forming the basis of plaintiffs petition for protection began either shortly before or shortly

after Mrs. Lasserre learned of said contract non -renewal.

Based on plaintiff's petition for protection, a hearing officer of the Twenty -Second

Judicial District Court issued a temporary restraining order ( TRO) pursuant to LSA- R. S.

46: 2171, et seq. The matter was originally set and came for hearing on October 22,

2021. However, defendant requested and was granted a continuance. The matter was

reset for November 5, 2021. Additionally, an interim stipulation was entered enjoining

defendant from posting to social media or in any electronic format " anything concerning

plaintiff]; the family of [ plaintiff]; [ plaintiff' s church,] New Horizon Church; [ plaintiff's

employer,] Lakeside Christian Academy; and/ or any ministry owned or associated with

plaintiff]," during the period between the October 22, 2021 hearing and the November

5, 2021 hearing date.

During the November 5, 2021 hearing, testimony was heard, evidence was offered,

filed, and introduced, and the matter was submitted. The hearing officer issued oral

findings of fact and an oral recommendation that plaintiff's petition for protective order

be granted for a period of eighteen months and that defendant be cast with costs. The

hearing officer executed a written recommendation consistent with his oral finding and

oral recommendation the same day.

Defendant timely filed an exception to the hearing officer's recommendation on

November 12, 2021. The trial court held a hearing on defendant's exception to the

hearing officer's recommendations on February 16, 2022. The trial court met with counsel

in chambers and advised that the trial would be de novo. Counsel agreed. Testimony

was heard and submitted by both parties.

On February 18, 2022, the trial court issued written reasons for judgment.' That

same day, the trial court issued a completed " Uniform Abuse Prevention Order" form

1 The trial court's written reasons began by considering, and overruling, an evidentiary objection defendant raised at the February 16, 2022 hearing. As defendant does not assign this evidentiary ruling as error, it is not before ns on appeal.

Regarding the protective order, the trial court wrote: The evidence established that [ plaintiff] is a minister at New Horizon Church. Defendant's] wife was employed as secretary to [ plaintiff]. [ Defendant] sent texts and made posts to social media which prompted [ plaintiff] to seek a protective order on the grounds that [ defendant' s] actions amount to cyberstalking. On November 5, 2021[,] [ the hearing officer] found that [ defendant] cyberstalked [ plaintiff] and recommended a

3 protective order form), as required by LSA- R.S. 46: 2136. 2( C) in connection with the

issuance of any TRO or protective order. 2 The completed protective order form indicated

that a protective order was issued pursuant to LSA- R. S. 46: 2171, etseq., pertaining to

non -intimate stalking by an acquaintance. The term of the protective order was eighteen

months from the date of issuance, or until August 18, 2023. During this time period, the

protective order form prohibited defendant from: abusing, harassing, assaulting,

stalking, following, tracking, monitoring, or threatening plaintiff in any manner;

contacting plaintiff personally, through a third party, or via public posting, by any means,

including written, telephone, or electronic ( text, email, messaging, or social media)

communication without the express written permission of the trial court; going within 100

yards of plaintiff or his residence; going within 100 yards of plaintiff's place of

employment/ school and interfering with plaintiff's employment/ school; and damaging any

property or belongings of plaintiff or in any way interfering with his living conditions. The

completed protective order form also ordered defendant to pay " attorney fees," though

the form did not indicate to whom or in what amount the attorney fees were to be paid.

p] rotective [ o] rder issue for a period of 18 months ordering [ defendant] not to abuse, harass, assault, stalk, follow, track, monitor[,] or threaten [ plaintiff] in any manner whatsoever. [ Defendant] filed the instant [ e] xception seeking a trial [ de novo] denying p] laintiff's Petition for Protective Order on the following grounds: Defendant] urges that [ p] laintiff lacks sufficient facts to support the granting of a protective order, and lacks evidence to support his claim that he suffered any damages.

The Court finds that while some of [ defendant's] acts may have been protected speech, there were other texts and social media posts that were for the purpose of threatening[] or harassing [ plaintiff] and those communications in combination amount to cyberstalking. Accordingly, [ p] laintiff is entitled to a [ p] rotective [ o] rder for a period of 18 months ordering [ d] efendant not to abuse, harass, assault, stalk, follow, track, monitor[,] or threaten [ plaintiff] in any manner whatsoever. He is ordered not to contact [ plaintiff=], personally, through a third party[,] or via public posting by any means, including written, telephone, or electronic communication without the express[] permission of the court. He is ordered not to go within 100 yards of [ plaintiff], his residence, his place of employment at either the church, 3401 Pontchartrain Drive, Slidell, Louisiana 70458, or the school, Canulette Drive Slidell, Louisiana 70458. Defendant is cast with all costs of these proceedings.

2 Louisiana law mandates that trial courts use a uniform form for the issuance of any TRO or protective order, called the " Uniform Abuse Prevention Order." See LSA- R. S. 46: 2136. 2( C); Head v. Robichaux, 2018- 0366 ( La. App. 1 Cir. 11/ 2/ 18), 265 So. 3d 813, 816. The trial court checks off a box provided on the uniform form to indicate under which law it issues the TRO and/ or protective order: ( 1) LSA- R. S. 46: 2131, et seg. ( Domestic Abuse); ( 2) LSA- R.S. 46: 2151 ( Dating Violence); ( 3) LSA- R. S. 46: 2171, et seq. ( Non - intimate stalking); ( 4) LSA- R. S. 2181, et seq. ( Non -intimate sexual assault); ( 5) LSA- Ch. C. art. 1564, et seq. (Children' s Code Domestic Abuse); or, ( 6) a court approved consent agreement. Head, 265 So. 3d at 816- 17.

0 Similarly, the completed protective order form ordered defendant to pay " all court costs"

to the " clerk of court," without specifying the amount to be paid.

Defendant now appeals, asserting that the trial court erred in granting the

protective order. Plaintiff answered the appeal, requesting that this Court award " the

reasonable sum of $ 1, 500. 00 for trial attorney fees, together with an additional sum of 3 750 for responding to this appeal, together with all costs of both courts."

PROTECTION FROM STALKING ACT

Louisiana Revised Statutes 46: 2171, et seq., known as the " Protection from

Stalking Act," was enacted to provide a civil remedy for stalking victims against 4 perpetrators, offering immediate and easily accessible protection . LSA- R. S. 46: 2171.

Under the Protection from Stalking Act ( the Act), " stalking" means any act that would

constitute the crime of stalking under LSA- R.S. 14: 40. 2 or cyberstalking under LSA- R. S.

14: 40. 3. See LSA- R. S. 46: 2172; Scott v. Hogan, 2017- 1716 ( La. App. 1 Cir. 7/ 18/ 18),

255 So. 3d 24, 29. However, despite the Act's reference to these criminal stalking

statutes, petitions for protection from stalking are not criminal proceedings. Rather, " the

sole relevance" of the criminal stalking statutes in the context of a petition flied under

the Act is `' to provide the definition of stalking." See Smith v. Dugas, 2019- 0852

La. App. 1 Cir. 2/ 26/ 20) 2020 WL 913673, * 2 ( unpublished).

3 On October 20, 2022, plaintiff filed a " Request for Sur -Reply Brief." In response to plaintiff' s request, defendant filed a " Motion to Strike Appellee ' Su r -Reply' or in the Alternative to Hold Appellee in Contempt of Court" the following day. On January 9, 2023, this Court denied plaintiff's request and denied defendant's motion as moot.

4 The statement of purpose of the Act is set forth in LSA- R. S. 46: 2171, 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.

5 Louisiana Revised Statutes 14: 40. 3( 6) defines the offense of cyberstalking as

follows:

Cyberstalking is action of any person to accomplish any of the following:

1) Use in electronic mail or electronic communication of any words or language threatening to inflict bodily harm to any person or to such person' s child, sibling, spouse, or dependent, or physical injury to the property of any person, or for the purpose of extorting money or other things of value from any person.

2) Electronically mail or electronically communicate to another repeatedly, whether or not conversation ensues, for the purpose of threatening,

terrifying, or harassing any person.

3) Electronically mail or electronically communicate to another and to knowingly make any false statement concerning death, injury, illness, disfigurement, indecent conduct, or criminal conduct of the person electronically mailed or of any member of the person' s family or household with the intent to threaten, terrify, or harass.

4)Knowingly permit an electronic communication device under the person' s control to be used for the taking of an action in Paragraph ( 1), ( 2), or ( 3) of this Subsection.

Louisiana Revised Statutes 14: 40. 3( 6) does not define the terms " threaten,"

terrify," or " harass." Therefore, each must be given its generally prevailing meaning

based on context and common usage. See LSA- C. C. art. 11; LSA- R. S. 1: 3; Guitreau v.

Kucharchuk, 99- 2570 ( La. 5/ 16/ 00), 763 So. 2d 575, 579. " Threat" is defined by Black's

Law Dictionary, 11th ed. 2019, as "[ a] communicated intent to inflict harm or loss on

another or on another' s property ... a declaration, express or implied, of an intent to

inflict loss or pain on another" and "[ a] n indication of an approaching menace; the

suggestion of an impending detriment." Black's defines "[ h] arassment" as "[ w] ords,

conduct, or action ( usu. repeated or persistent) that, being directed at a specific person,

annoys, alarms, or causes substantial emotional distress to that person and serves no

legitimate purpose; purposeful vexation." " Terrify" means " to drive or impel by

menacing," or " to fill with terror," and " terror" means " a state of intense or overwhelming

fear." Merriam—Webster Online Dictionary ( Merriam—Webster. com). As used in LSA- R. S.

14: 40. 3( B)( 2), " threatening," " terrifying," and " harassing" are the adjective forms of

threat," " terrify," and " harass," and all three words modify " purpose."

1.1 BURDEN OF PROOF

At a hearing on a protective order, the petitioner must prove the allegations by a

preponderance of the evidence. Head v. Robichaux, 2018- 0366 ( La -App. 1 Cir.

11/ 2/ 18), 265 So. 3d 813, 816. 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. Head, 265 So. 3d at 816.

STANDARD OF REVIEW

A trial court's decision to issue or deny a protective order is reversible only upon a

showing of an abuse of discretion. Additionally, the trial court sitting as a trier of fact is

in the best position to evaluate the demeanor of the witnesses, and its credibility

determinations will not be disturbed on appeal absent manifest error. Scott v. Hogan,

2017- 1716 ( La -App. 1 Cir. 7118118), 255 So. 3d 24, 31.

DISCUSSION

In this matter, we are tasked with determining whether the trial court properly

issued the February 18, 2022 protective order in favor of plaintiff. Having thoroughly

reviewed the entirety of the record before us, and having carefully considered the

applicable law, we find the trial court did not abuse its discretion in issuing the protective

order, nor did the trial court manifestly err in making its credibility determinations.

In this matter, the parties disagree on many details regarding the circumstances

giving rise to the dispute between them. For example, defendant claims his wife was

fired without warning, while plaintiff testified that Mrs. Lasserre ignored multiple requests

to discuss her contract before she was informed it was not renewed. Similarly, defendant

testified that he began making negative posts about plaintiff before his wife was fired,

and plaintiff testified that defendant did not begin making negative posts about him until

afterward. Other points of contention include whether the parties properly returned

school and personal property following Mrs. Lasserre' s termination.

Significantly, there is little, if any, dissent regarding the actions on which plaintiff's

petition for protective order were based. Plaintiff alleged, and defendant admitted at

trial, that on July 29, 2021, shortly after Mrs. Lasserre learned her employment contract

7 was not renewed, defendant sent the following text message to plaintiff and his daughter,

Ms. Lynch:

Well COWARD! So u hear it from a real man with a Spine[.] I will make it my life' s work to see that you and your [ cult] you disguised as a church goes to ZERO. I will run a cam- paign until this is done! You poke the wrong one Jhon Coward! To zero.

This message, which we will refer to as the " to zero" text, was followed by at least one

text message on July 26, 2021; at least one text message on July 29, 2021; at least one

text message on August 2, 2021; at least two text messages on August 3, 2021; at least

three text messages on August 4, 2021; and at least one text message on October 5,

2021. Additionally, on August 5 and August 29, 2021, defendant sent plaintiff text

cartoons of a man sitting in what appears to be a movie theater seat and eating popcorn.

While it is unnecessary to recount the content of each text message in detail, we

reference a few for illustrative purposes. For example, on August 3, 2021, defendant

sent the following text message to plaintiff and Ms. Lynch: " So u can be prepared to

cower behind your staff of Women. I will be coming to [the church] to remove my family' s

personal prop- erty. And pick u school transcript." And, on October 5, 2021, defendant

sent the following text message to plaintiff: " I' m still out here coward shit no one anything

you put out I hope you' re enjoying the ride[.]"

In addition to the text messages defendant sent to plaintiff directly, defendant

admitted that he generated and operated a Facebook page named " Jhon ( sic) Doe."

Numerous posts from the Jhon Doe Facebook account were identified by defendant and

admitted into evidence, including one that read:

So, apparently, [ plaintiff] has an excuse to be a piece of shit coward to other Christians, because [ Monica Lynch, plaintiff's daughter,] found a scripture to allow her to believe her father is not a monster, non- Christian faith -destroying man. But he actually is.

On August 4, 2021, defendant posted "# CancelJohnRaymond # JohnCoward" to the Jhon

Doe Facebook book page. And, on October 22, 2021, hours after the hearing at which

defendant stipulated to the temporary injunction, defendant posted:

God is great!! Know if God is in your corner you can defeat all of Satan' s army!! Don' t allow a cult scare you into believing there' s no other choices. Stand up for your belief in God the rest will follow. All glory to God. The October 22, 2021 post was accompanied by a picture of plaintiff, depicted with red

pupils, and with the phrase " save Brothers and Sisters of Christ From John Raymond"

printed over plaintiff's image in red text. As with the text messages, these examples are

only a few of many posts from the Jhon Doe Facebook account admitted into evidence

at the February 16, 2022 hearing. Others purported to be " warning[ s] to the community,"

repeating that plaintiff was " not a Christian man" and was a " coward." Some included

apparent links to a " private group" titled " Christians of St. Tammany against John

Raymond." Additional posts stated plaintiff treated people poorly, refused to return items

of personal property, and could not be trusted with finances.'

When plaintiff testified regarding the effect defendant's texts and posts had on

him, plaintiff expressed that defendant's actions made him afraid for his safety, as well

as the safety of his family, church, and school. Plaintiff stated, " I feel my life is

threatened. I feel our church is threatened. I' m very scared. My family is scared. Church

members are scared who shared these posts with me." With respect to the language

used in the " to zero" text message, plaintiff stated that he found the language to be

evocative of "[ G] round [ Z] ero" associated with the 9/ 11 attack. Plaintiff also testified

that defendant's language stirred fears of school shootings and church bombings,

particularly in light of defendant's expressions of anger. Plaintiff testified:

You know, knowing [ defendant] like I have for a number of years, it scared the living daylights out of me. And he can claim that it's the cancel culture. But I looked up cancel in my dictionary, and it says to destroy, to

eliminate. So I fear for my life.

Our school was virtually on lockdown for a couple of weeks. Every day we're looking in the parking lot to see if [ defendant] is going to show up and do a school shooting. I mean, this is serious business. I run a school of 200 kids. I take it very seriously. So we feel very threatened.

5 An apparently unrelated post from the Jhon Doe Facebook account read, " People ask hove you deal with 5 kids. Do I need to say anymore[?]" A photograph of five children in a dog crate accompanied the post.

0 Plaintiff also testified to the disturbance he felt as a result of being referred to as

the Antichrist:

The hearing officer] was looking me in the eye when he said Antichrist twice. And he said do you believe John Raymond is the Antichrist? Defendant] said, yes, I believe John Raymond is the Antichrist, to which the hearing officer] said that is very disturbing because even a good Christian who doesn't wish other people harm might find it an honor to kill the Antichrist.

Three other witnesses testified on behalf of plaintiff. Buffie Crawford Singletary,

the school principal, stated that if she saw defendant on the school grounds, she would

lock it down and call the cops, because he does intimidate [ her] that much, and he has

been so volatile in his personality." She also described speaking to Mrs. Lasserre on the

phone after she was informed her employment contract was not renewed. According to

Ms. Singletary, defendant took the phone from Mrs. Lasserre and asked Ms. Singletary,

Are you that F- ing stupid that you believe everything [ plaintiff] says[?]"

Tabitha Coogan, the parent of a student at the school, testified that the Jhon Doe

Facebook account posts angered and frightened her. Ms. Coogan explained that the

school website had used a photograph showing plaintiff escorting Ms. Coogan' s daughter

into the school building, with Ms. Coogan' s authorization. However, without obtaining

Ms. Coogan' s authorization, defendant posted the same photograph to the Jhon Doe

Facebook account, with a gray circle superimposed over the child' s face and a magnified

image of the child' s hand. The caption read in part, " Qmg why is this child so scared!

I' m not sure if this is the universal distress sign. Looks close." Ms. Coogan was disturbed

by defendant' s use of her daughter's photograph for several reasons, stating that she did

not authorize him to use the photograph and she did not agree with defendant' s claim

that her daughter appeared to be in distress in the photo. Ms. Coogan explained, " You' re

using my child' s picture to do harm to someone else." Ms. Coogan also expressed concern

for her child' s safety because the photograph could reveal her location. Ms. Coogan' s

daughter was seven years old at the time of trial.

Monica Lynch, plaintiffs daughter, also testified on plaintiff's behalf. Ms. Lynch

recounted defendant forwarding her the " to zero" text message he sent her father,

stating, " And that was scary. And knowing [ defendant], I believed him." Defendant also

10 targeted Ms. Lynch from the Jhon Doe Facebook account, posting her picture with the

following language:

Christian community beware of this snake! The apple doesn' t fall far from the Jhon Raymond tree here. After I notified their family that we were leaving this church. She reached out to my child and not in a spiritual way but in a way to make her lean against me!! I raise my children to be smarter than the fall for people like this. I pray your children are safe and wise enough to not be friended by this woman. V

Ms. Lynch expressed grief over the manner in which her relationship with defendant's

family, particularly his children, ended. She described anxiety over when the next

communication from defendant would be received and what the content might be, and

stated that she had " gotten a weapon" for " personal safety."

In this matter, defendant readily admitted to sending the complained -of text

messages to plaintiff and Ms. Lynch, as well as being responsible for the Jhon Doe

Facebook posts. Further, defendant' s " to zero" text message expressed his intent to

make it [ defendant's] life' s work to see that [ defendant] and [ defendant's cult] disguised

as a church goes to ZERO." Having thoroughly considered the record in its entirety, we

find that the record supports a finding that plaintiff proved, by a preponderance of the

evidence, that defendant's actions constituted cyberstalking pursuant to LSA- R.S.

14: 40. 3( 6)( 2).

Further, we find no merit in defendant's varied arguments asserting that the trial

court erred in granting the protective order. Although defendant denied that he ever

posed or intended a physical threat, LSA- R. S. 14: 40. 3( B)( 2) does not require a physical

threat. Regarding defendant's argument that the definition of stalking set forth in LSA-

R. S. 14: 40. 3 required " direct communication from stalker to stalkee" and the majority of

the complained -of statements were made via the Jhon Doe Facebook account to a third -

party audience, rather than directly to plaintiff, defendant is simply incorrect. The

cyberstalking statute does not require the electronic communication be transferred or

transmitted directly to the victim. Terrell v. Derauen, 2021- 1327 ( La. App. 1 Cir.

7/ 5/ 22), 345 So. 3d 1065, 1071; See Head, 265 So. 3d at 819. Thus, it is irrelevant that

plaintiff was " blocked" from the Jhon Doe Facebook account and was shown the posts by

other people who had access to the account.

11 With respect to defendant's characterization of his conduct as an attempt to voice

his opinion and exercise his freedom of speech under the First Amendment, defendant's

argument also fails. Although the First Amendment to the United States Constitution and

Louisiana Constitution Article I, § 7 prohibit the enactment of laws abridging the freedom

of speech, the right of free speech is not unlimited. Terrell, 345 So. 3d at 1070- 71. The

First Amendment does not protect a true threat, which is " a statement that a reasonable

recipient would have interpreted as a serious expression of an intent to harm or cause

injury to another." State v. Buckenberger, 2019-0833, 2019 WL 4235982 ( La. App. 1

Cir. 9/ 3/ 19) ( unpublished), writ denied, 2020- 00317 ( La. 7/ 24/ 20), 299 So. 3d 76, citing

United States. Beale, 620 F. 3d 856, 865 ( 8th Cir. 2010), cert. denied, 562 U. S. 1190,

131 S. Ct. 1023, 178 L. Ed. 2d 847 ( 2011). Nor does the First Amendment protect criminal

activity, even when carried out with words. State ex rel. RT, 2000- 0205 ( La. 2121/ 01),

781 So. 2d 1239, 1243. We have already determined that the trial court did not abuse its

discretion in determining that defendant's actions constituted threats and harassment

amounting to the criminal offense and cyberstalking as defined by LSA- R.S. 14: 40. 3. We

likewise find that defendant's threatening and harassing actions were not the class of

actions protected by the First Amendment right of free speech.

Defendant also claims that his " public social media posts" were not intended to

harass plaintiff. Rather, defendant's purpose was to " inform the local community of an

issue of public concern," specifically " the threat that [ defendant] legitimately believed

plaintiff] posed to the churchgoers and to children." He insists that he sent text

messages to plaintiff to " express[] his frustrations to [ plaintiff] over the undignified way

his wife had been fired ... and to schedule a time to pick up his wife' s personal property

from the school." Defendant contends that his actions are, therefore, exempted from

classification as cyberstalking pursuant to Paragraph E of LSA- R.S. 14: 40. 3, which

provides that "any peaceable, nonviolent, or nonthreatening activity intended to express

political views or to provide lawful information to others" is not cyberstalking. However,

these arguments contradict defendant's explicit expression of intent to threaten, terrify,

and harass plaintiff in the " to zero" text message. Where, as in this case, two permissible

views of the evidence exist, the factfinder`s choice between them cannot be manifestly

12 erroneous or clearly wrong. See Stobart v. State, through Department of

Transportation and Development, 61.7 So. 2d 880, 882 ( La. 1993). Thus, we cannot

fault the trial court's decision to discount defendant's self-serving characterization of his

actions as an attempt to exercise his freedom of speech " to warn" his community and

express his " frustrations."

For the reasons expressed herein, we find no manifest error in the trial court's

factual findings, and we discern no abuse of discretion in the trial court's legal ruling that

affirmed the actions of the hearing officer. See Shirley v. Shirley, 47, 442 ( La.App. 2

Cir. 10/ 10/ 12), 107 So. 3d 99, 102. Accordingly, the trial court's judgment granting the

protective order is affirmed.

THE ANSWER TO THE APPEAL

As noted above, plaintiff answered the appeal, asking that this Court award " the

reasonable sum of $ 1, 500. 00 for trial attorney fees, together with an additional sum of

750 for responding to this appeal, together with all costs of both courts." In response,

defendant argues that plaintiff should have made this request to the trial court and the

answer to the appeal should be dismissed.

Pursuant to the 2021 amendments to LSA- 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 LSA- C. C. P. art. 2088( A)( 10) and Comments 2021, comment ( a);

Locke v. MADCQN Corporation, 2022- 0630 ( La. App. 1 Cir. 12/ 22/ 22), So. 3d

2022 WL 17845489, * 2; Lathan Co. v. Department of Education, 2022- 0215

La. App. 1 Or. 6/ 21./22), 2022 WL 2230376 ( unpublished writ action). Thus, this Court

does not have jurisdiction to grant plaintiff's request to set attorney fees incurred at the

trial court, and this request is more properly directed to the trial court. We further note

that when a party who was awarded attorney fees in the trial court is forced to and

successfully defends against an appeal, an increase in attorney fees should generally be

granted. Nitcher v. Northshore Regional Medical Center, 2011- 1761 ( La. App. 1 Cir.

5/ 2/ 12), 92 So. 3d 1001, 1014, writ denied, 2012- 1230 ( La. 9/ 21/ 12), 98 So. 3d 342.

However, given that the trial court has not awarded attorney fees, we decline to address

13 the issue of appellate court attorney fees. Accordingly, we dismiss the answer to the appeal as premature. 6

CONCLUSION

For the foregoing reasons, the February 18, 2022 order of protection is affirmed.

The answer to appeal is dismissed. Costs of the appeal are assessed to Felix Lasserre, Sr.

JUDGMENT AFFIRMED; ANSWER TO APPEAL DISMISSED.

6 This case illustrates one of the complications resulting from the present version of LSA- C, C. P. art. 2088( A)( 10), which requires the appellate court to treat a judgment as final even though it awards attorney fees but fails to set the amount of attorney fees. However, correcting this issue falls within the domain of the legislative branch of government.

14 JOHN GLENN RAYMOND STATE OF LOUISIANA

VERSUS COURT OF APPEAL

FELIX LASSERRE, SR. FIRST CIRCUIT

NO. 2022 CA 0793

HOLDRIDGE, J., concurs.

I respectfully concur with the opinion. I would hold that some of the posts

made by Mr. Lasserre on his Facebook page are protected speech under the First

Amendment.