MELANIE RIVIERE NO. 23-CA-372
VERSUS FIFTH CIRCUIT
BERND BELLO COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 838-561, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
May 17, 2024
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, John J. Molaison, Jr., Scott U. Schlegel, and Timothy S. Marcel
REVERSED; ORDER VACATED JJM SMC JGG TSM
DISSENTS WITH REASONS SUS COUNSEL FOR DEFENDANT/APPELLANT, BERND BELLO T. Carey Wicker, III Thomas C. Wicker, IV
COUNSEL FOR PLAINTIFF/APPELLEE, MELANIE RIVIERE Melanie Riviere MOLAISON, J.
The appellant, Bernd Bello, seeks to review the order of protection entered
by the trial court on April 17, 2023. For the following reasons, we reverse the trial
court ruling and vacate the protective order.
FACTS AND PROCEDURAL HISTORY
This appeal stems from a Petition for Protection from Stalking or Sexual
Assault filed by the plaintiff/appellee, Melanie Riviere, against Mr. Bello, the
defendant/appellant, on March 10, 2023. In this petition, Ms. Riviere alleged that
Mr. Bello had an approximately two-year history of “unwanted advances
romantically and/or requesting friendship,” that he had exhibited “stalking
behaviors,” and that his behavior towards her had “become obsessive.” She stated
that she could provide witness statements regarding Mr. Bello’s “bizarre
behavior.” The petition alleged past incidents of the defendant obtaining her phone
number and her resident address, sending flowers to her home, following her to her
car, and confronting her as to why she had not spoken more than twenty words to
him in the past year, and attending the same dance class. She stated that the dance
class instructors felt that Mr. Bello had a “personality disorder and requested [she]
seek out a restraining order after also witnessing his behavior.” In addition, Ms.
Riviere listed her two minor children as protected persons, although she made no
allegations involving the children. Ms. Riviere requested a Temporary Restraining
Order (“TRO”) prohibiting Mr. Bello from contacting her by any means or going
within 100 yards of her home and place of employment. Ms. Riviere attached an
“affirmation” to the petition stating, “I believe that the defendant poses a threat to
my safety and/or to the child(ren) or to others from whom I requested relief.”
On that same date, the trial court issued a Uniform Abuse Prevention Order -
Temporary Restraining Order effective through March 2, 2023, granting the relief
requested by the plaintiff. The court ordered Mr. Bello to appear for a
23-CA-372 1 contradictory hearing on March 22, 2023. However, the court did not serve him.
The court issued a second TRO on March 22, 2023, and set the hearing date on
April 3, 2023.
The parties appeared for the hearing on April 3, 2023. Mr. Bello had
retained counsel. The trial court granted Mr. Bello’s request for continuance and
reset the contradictory hearing for April 17, 2023.
The evidence presented at the contradictory hearing indicates that Ms.
Riviere and Mr. Bello are members of a local social dancing community and
frequent local venues to dance. Ms. Riviere, who appeared in proper person at the
hearing and in this appeal, testified that in the social dance community, it is
customary to dance with people who are not friends. She went on to testify that
Mr. Bello has “stalked” her Facebook page, found out information about her, found
her home address, sent her unwanted gifts, and followed her around “in social
situations.” She told Mr. Bello she had no interest in a relationship the first time
he asked her out; however, he continued to ask her, and she declined. Ms. Riviere
testified that as of February 9, 2022, Mr. Bello had asked her out twenty-two times.
She politely declined and told him she would “reach out” to him if she had time.
After further Facebook messages, she told him she did not have the time or
emotional capacity to invest in a friendship.
Ms. Riviere went on to testify regarding a message sent by Mr. Bello
referring to her ex-husband. She said the only way he could have had information
about her and her ex-husband was for him to drive by her house to see his vehicle
in the driveway. Ms. Riviere then continued to read through several “messages,”
at which point the trial judge went through each electronic conversation when the
court admitted them into evidence. The following electronic messages were
admitted into evidence by Ms. Riviere:
23-CA-372 2 • September 28, 2021-- Mr. Bello sent Ms. Riviere a message asking her out to dinner. Ms. Riviere responded that she was going through a divorce and was not interested in getting into another relationship. She stated, “I really had fun with you the other night.” Mr. Bello responded that he was not looking for a relationship but would like to “meet as friends” and talk about dancing.
• November 8, 2021 -- Mr. Bello offered to send the plaintiff’s photography business page to some of his friends. She responded that would be helpful and thanked him. The next day, Mr. Bellow sent a message letting Ms. Riviere know there was an error in the appointment times on the photography page. Ms. Riviere responded she had fixed it.
• November 11, 2021 -- In response to flowers sent by Mr. Bello to Ms. Riviere at the address listed on her photography page, which was her home address, Ms. Riviere sent Mr. Bello a message thanking him for the flowers, stating: “That was sweet.” She later sent him a message saying that she was “not romantically interested” and would “feel terrible” if she was giving the “wrong message.” Mr. Bello responded that he understood and had sent the flowers as a “gesture of friendship.” He stated that he enjoyed dancing with her, that she had not been giving him the wrong message, and that he would like to “be friends” and “hang out sometimes” or go dancing when she could. The plaintiff responded with a “thumbs up” to this message.
• January 13, 2022 -- Mr. Bello sent Ms. Riviere a text message stating that a band was playing in Slidell and that he hoped she could make it out. Ms. Riviere responded, “Sounds like fun.”
• Early February 2022 -- Mr. Bello sent a message stating that Nashville South, the band that Mr. Bello is employed to promote, was playing at a dance hall on Friday and asked Ms. Riviere if she could attend. Mr. Bello then sent messages asking Ms. Riviere if she was “alright” and if something was wrong or if she was upset with him. He stated: “If there’s something bothering you about me please let me know.” Ms. Riviere responded that she is a single mother of two kids and works two jobs. She asked Mr. Bello not to “take offense,” stating she was “just busy” and would reach out when she had time.
• February 14, 2022 -- Mr. Bello sent a message to the plaintiff wishing her a happy Valentine’s Day and stating that he enjoyed dancing with her. He referenced their meeting around 1994, then said that it appeared that she was “afraid” to talk to him. Ms. Riviere responded that she did not have the “time or the emotional capacity to invest in a friendship right now.” She then wished him happy Valentine’s Day. The next day, Mr. Bello sent a lengthy message stating that he understood that she was trying to “patch things up” with her ex- husband and that he did not want to get in the way.
• February 23, 2022 -- Mr. Bello sent a text message to Mr. Riviere expressing his “hurt” over being blocked by her on Facebook,
23-CA-372 3 explaining that he thought they were friends and that she kept telling him she was busy and did not have time. He stated that he wished she would have asked him to leave her alone, then wished her “all the best.”
• March 8, 2022 -- Mr. Bello sent Ms. Riviere a text message stating that Nashville South was playing on March 19 for a birthday party and reunion and that he hoped she would attend. He stated “I promise I will not do or say anything to make you feel uncomfortable, just want to dance.” Ms. Riviere did not respond. On March 18, 2022, Mr. Bello texted asking if she could attend the “reunion and birthday parties.” Ms. Riviere did not respond.
• May 8, 2022 -- Mr. Bello sent Ms. Riviere a text message wishing her a happy Mother’s Day. Ms. Riviere did not respond.
• October 8, 2022 -- Mr. Bello sent a message stating, “I don’t really know what else I can do to apologize for my messages that made you feel uncomfortable. That was never my intention. I am truly sorry about that but would really enjoy dancing with you next Saturday.” Ms. Riviere responded, “We are all good,” and “See you then.”
• December 2022 -- Mr. Bello sent a message to Ms. Riviere stating that all dancers would be at Southern Rhythm for New Year’s Eve. She responded that it sounded like a “good idea.”
• January 23, 2023 -- Ms. Riviere sent a message to Mr. Bello asking, “Are you going anywhere tonight?”
• February 14, 2023 -- Mr. Bello sent Ms. Riviere a Valentine’s Day greeting stating that she was terrific and he was thinking of her. She responded by thanking him and putting a heart emoji in the message.
• March 9, 2023 -- Mr. Bello sent a lengthy text message to Ms. Riviere stating that he enjoyed dancing with her and wanted to improve his dancing. He said that the fact that she was “going to Fleur de Dance " impacted him showing up there for the past two weeks but that he would have gone there eventually anyway. Mr. Bello then stated that he found her attractive and that she had a beautiful smile. He elaborated that he wanted to talk to her and did not understand why she was afraid to speak to him. He asked that they feel “comfortable and relaxed around each other” and be able to have fun.
• March 10, 2023 -- Ms. Riviere sent a text message to Mr. Bello stating, “I’ve made it very clear that you make me uncomfortable and I’m not interested in a romantic relationship with you but you continue to pursue one. Please do not talk to me or text me, call me, ask me to dance or come to my dance class. Please do not Facebook or Instagram stalk me. Please do not find out where I live and send flowers or send anything to my home. I have tried to tell you this nicely, but clearly you’re continuing to ignore my request and this is the last time I will say this. Please leave me alone.” Mr. Bello
23-CA-372 4 responded that he would leave her alone and hoped she would realize how hurtful this was for him. He concluded by wishing her a “good life.”
Ms. Riviere testified that the day after the March 10, 2023 exchange, Mr.
Bello went to the dance studio where she took dance classes. However, she
admitted that he could have gone to the studio to find out her schedule “so he’d
know if I was there or not,” possibly so he could avoid her. Ms. Riviere admitted
being unaware that Mr. Bello produced several of the events he sent to her
regarding the band Nashville South playing at Rock N Bowl. She testified that she
attended these events and danced with Mr. Bello more than 50 times. She testified:
“He has operated in the most gentleman[ly] way on the dance floor.” She
elaborated that once they exited the dance floor, he was in her “personal space”
and listening to “personal conversations” she was having with friends. She
admitted that he never acted inappropriately with her or inappropriately touched
her. She testified that he would stand two feet away and patiently wait for her to
finish a conversation so they could dance again and that this behavior made her
uncomfortable.
In response to questions regarding her allegation that Mr. Bello had asked
her out on twenty-two occasions, Ms. Riviere responded that she considered the
messages that Mr. Bello sent informing her of a dance outing and asking if she
wanted to go to be “asking her out.” She acknowledged that this was an invitation
to meet a group and dance. Ms. Riviere testified: “When I sat down recently and
sat down and looked holistically over text threads over the period of two years, it
was right before me the obsessive behavior and the unusual behavior and the way
that he words things. It’s unusual and it’s bizarre and I feel threatened.”
Ms. Riviere further testified that since the March 10, 2023 message in which
she told Mr. Bello to leave her alone, she believed that “he was still obsessively
23-CA-372 5 tracking [my] movements and tracking what I was doing on Facebook.” She did
not explain the basis for this belief or produce any evidence to support it.
In response to whether she was asking Mr. Bello not to be allowed to go to
Rock N Bowl, Ms. Riviere testified that she attends dance class every Wednesday
and is “in competition,” which requires her to practice at Rock N Bowl. After Ms.
Riviere’s cross-examination, the trial judge asked Ms. Riviere if she had anything
else to present and if she wished to call any other witnesses, to which she
responded no.
Mr. Bello testified that he had known Ms. Riviere for thirty-one years. They
first met in 1994 but had not maintained contact. In September of 2021, he was at
a dance hall when Ms. Riviere approached him, asking if he remembered her from
the past and if he still danced. They danced that night. Mr. Bello sent Ms. Riviere
a friend request on Facebook, and she returned it. Ms. Riviere had a photography
page on Facebook that she invited him to follow. This page contained her home
address.
He denied having a romantic interest in Ms. Riviere; he only wanted her as
a dance partner. He had been dancing for thirty years, had taken lessons at various
dance studios, and had danced at many different clubs. He works for Nashville
South, has helped put on events by the band at Rock N Bowl, and sets up “reunion
events” that he created online for dancers from the past to come to Rock N Bowl.
Mr. Bello explained that he wanted to join the dance class that Ms. Riviere
was taking because they had been dancing together, and he thought it would be
helpful to practice in a class together. When he discovered she did not want him to
attend the class, he went to the studio to inquire about alternative dates. Mr. Bello
asked to be informed if Ms. Riviere changed her classes or quit attending, allowing
him to attend class. No one from the dance studio told him he was not welcome to
return for classes.
23-CA-372 6 He denied attempting to reach out to Ms. Riviere in any way since her
March 10, 2023, message stating to leave her alone. He had not been to Rock N
Bowl since the TRO was issued.
After the hearing, the trial judge stated that Ms. Riviere had “proven her case
in order to get the injunction and to get the protection from stalking from Mr.
Bello.” The trial judge ordered that Mr. Bello not harass, stalk, follow, track,
monitor, or threaten Ms. Riviere in any manner. The court ordered that Mr. Bello
not contact Ms. Riviere personally or through a third party, via public posting, or
by any means without the express written permission of the court. Also, the court
ordered Mr. Bello not to go within 100 yards of Ms. Riviere’s residence,
employment, and school. The trial judge stated that this order followed Ms.
Riviere, so if she was not at Rock N Bowl, Mr. Bello could go there. When asked
for clarification, the court stated that if Ms. Riviere appeared at a place where Mr.
Bello was, he had to leave. The court signed the order and gave a copy to Mr.
Bello. This timely appeal followed.
LAW AND DISCUSSION
Ms. Riviere filed for an order from protection under Louisiana Revised
Statutes 46:2171, et seq., known as the “Protection from Stalking Act.” The act
created a civil remedy for stalking victims against perpetrators, offering immediate
and easily accessible protection. La. R.S. 46:2171. Under this 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; Scott v. Hogan, 17-1716
(La. App. 1 Cir. 7/18/18), 255 So.3d 24, 29. Notwithstanding the act’s reference to
the criminal stalking statutes, petitions for protection from stalking are not criminal
proceedings. Instead, the reference to the criminal stalking laws in the context of a
petition filed under La. R.S. 46:2171 is “to provide the definition of stalking.” See
23-CA-372 7 Smith v. Dugas, 19-0852 (La. App. 1 Cir. 2/26/20), 2020 WL 913673,
(unpublished).
Stalking is “the intentional and repeated following or harassing of another
that would cause a reasonable person to feel alarmed or to suffer distress.” La.
R.S. 14.40.2(A). The term “harassing” is defined as “the repeated pattern of verbal
communications or nonverbal behavior without invitation which includes but is not
limited to making telephone calls, transmitting electronic mail, sending messages
via a third party, or sending letters or pictures.” La. R.S. 14:40.2(C)(1). A
“pattern of conduct” means “a series of acts over a period of time, however short,
evidencing an intent to inflict a continuity of emotional distress upon the person.”
La. R.S. 14:40.2(C)(2).
Louisiana Revised Statutes 14:40.3(B) 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(B) does not define the terms “threaten,”
“terrify,” or “harass.” Thus, we must give these words their generally prevailing
meaning based on context and everyday usage. La. C.C. art. 11; La. R.S. 1:3.
Black’s Law Dictionary, 11th ed. 2019 defines “threat” as “[a] communicated intent
23-CA-372 8 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.” Harassment is
defined by Black’s Law Dictionary 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).
The cyberstalking statute defines “electronic communication” as “any
transfer of signs, signals, writing, images, sounds, data, or intelligence of any
nature, transmitted in whole or in part by wire, radio, computer, electromagnetic,
photoelectric, or photo-optical system.” La. R.S. 14:40.3(A)(1).
At a hearing on a protective order, 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, 18-0366 (La. App. 1 Cir. 11/2/18),
265 So.3d 813, 816.
An appellate court reviews orders of protection under the abuse of discretion
standard of review. Oliva v. Jones, 22-385 (La. App. 5 Cir. 3/29/23), 360 So.3d
573, 578. Whether to grant a protective order and the extent of protection is within
the trial court's discretion. An appellate court will not ordinarily modify or reverse
a trial court in such matters absent an abuse of the trial court’s discretion. Id. To
reverse a fact-finder’s determination in an action seeking protection from abuse
order, the appellate court must find from the record that a reasonable factual basis
23-CA-372 9 does not exist for the trial court’s finding and that the record establishes that the
finding is clearly wrong. Id.
On appeal, Mr. Bello argues that the trial court erred in issuing a protective
order when the plaintiff did not establish her allegations by a preponderance of the
evidence.1 We agree.
The evidence indicates that after dancing with Ms. Riviere in September
2021, Mr. Bello asked Ms. Riviere out to dinner. Ms. Riviere responded that she
was going through a divorce and was not interested in another relationship. Mr.
Bello explained he was looking to meet as friends and talk about dancing. Two
months later, he sent her flowers. Ms. Riviere thanked him and explained she was
not interested in a romantic relationship. Mr. Bello responded that he understood
and that the flowers were a gesture of friendship. It is unclear what prompted Mr.
Bello’s later messages asking if Ms. Riviere was alright and if she was upset with
him, but it is clear that Ms. Riviere told him that she was a busy single mother
working two jobs and would reach out when she had time.
In a lengthy message sent on February 14, 2022, Mr. Bello explained that he
cared about Ms. Riviere “but not in a way to get into any kind of intimate
relationship.” He stated that it appears that she is afraid to talk to him. Ms.
Riviere responded that she did not have the energy or emotional capacity for a
friendship and wished him a happy Valentine’s Day. When Ms. Riviere blocked
Mr. Bello from her Facebook account in February of 2022, he told her he was hurt
and wished she had communicated with him. He ended by wishing Ms. Riviere
“all the best.”
1 The appellant also argues that the trial court erred in issuing an order under the protection for victims of sexual assault act. We find this argument to be without merit. The trial judge failed to check the appropriate statute on the uniform protective order form, however, at the conclusion of the hearing, the trial judge stated that Ms. Riviere had “proven her case in order to get the injunction and to get the protection from stalking from Mr. Bello.”
23-CA-372 10 The evidence indicates that after Ms. Riviere blocked Mr. Bello from her
Facebook account, she continued to see Mr. Bello and dance with him. The
evidence is unclear as to what prompted Mr. Bello to send messages apologizing to
Ms. Riviere and stating that he never intended to make her uncomfortable. He sent
several messages telling her of dance gatherings and hoped she could attend. At
the hearing, Ms. Riviere testified that these gatherings were to meet and dance with
a group of people.
On October 8, 2022, Mr. Bello sent a message, again stating that he was
sorry; he never intended to make her feel uncomfortable and was looking forward
to dancing with her the following Saturday. Ms. Riviere responded to this message
stating: “We are all good” and “see you then.”
In December 2022, Mr. Bello sent a message to Ms. Riviere stating that all
dancers would be at Southern Rhythm for New Year’s Eve. She responded that it
sounded like a “good idea.” Ms. Riviere testified that she attended and brought the
guy she was dating.
On January 23, 2023, Ms. Riviere sent a message to Mr. Bello asking, “Are
you going anywhere tonight?” When questioned about this message, she testified
that she was dancing with some friends “of ours, and so I asked him if he was
going to be out dancing.” She elaborated that she did not have and has never had
any issues socially dancing with Mr. Bello.
On February 14, 2023, Mr. Bello sent Ms. Riviere a Valentine’s Day
greeting stating that she was terrific and he was thinking of her. She responded by
thanking him and putting a heart emoji into the message.
On March 9, 2023, Mr. Bello sent a lengthy text message stating how much
he enjoyed dancing with her and wanted to improve his dancing. He said that her
“going to Fleur de Dance” impacted his showing up there for the past two weeks,
but he would have gone there eventually anyway. Mr. Bello wanted to talk to her
23-CA-372 11 and did not understand why she was afraid to speak with him. He asked that they
feel “comfortable and relaxed around each other” and be able to have fun.
On March 10, 2023, Ms. Riviere sent a strongly worded text to Mr. Bello
telling him to leave her alone and not talk to her, text her, ask her to dance or come
to her dance class. Mr. Bello said he would leave her alone and wished her a
“good life.” The evidence indicates that after the March 10, 2023, message from
Ms. Riviere, Mr. Bello had made no further attempts to contact Ms. Riviere in any
manner. The court served Mr. Bello with the TRO; he stopped going to Rock N
Bowl and hired an attorney to refute the allegations against him.
La. R.S. 14.40.2(A) defines stalking as “the intentional and repeated
following or harassing of another that would cause a reasonable person to feel
alarmed or to suffer distress.” The evidence indicates fourteen text messages or
exchanges on social media over eighteen months. During this time, Ms. Riviere
continued to see Mr. Bello and dance with him. While the messages admitted into
evidence show Mr. Bello’s persistent attempts to have a closer relationship with
Ms. Riviere, Ms. Riviere’s responses and actions did not indicate that she wanted
Mr. Bello to stop contacting or dancing with her. Instead, the evidence shows that
Ms. Riviere continued to dance with him and respond to his messages in a friendly
manner. She admitted to going to events that he invited her to attend. At the
hearing, Ms. Riviere testified that Mr. Bello knew his actions were making her
uncomfortable, yet he continued contacting her. However, the messages indicate
that Mr. Bello gave Ms. Riviere numerous opportunities to explain what made her
uneasy, and she failed to do so. Instead, she told him she was busy and would
reach out when time permitted, that she did not have the emotional energy for a
friendship, and that “we are all good.” The evidence shows that although Ms.
Riviere blocked Mr. Bello from sending her messages via Facebook, she did not
block him from sending messages on her cell phone.
23-CA-372 12 Six weeks before filing the petition for protection, Ms. Riviere sent Mr.
Bello a message asking if he was “going anywhere tonight?” She testified that she
sent this message because she was dancing with “some friends of ours and so I
asked him if he was going to be out dancing.” She elaborated that she did not have
and has never had any issues socially dancing with Mr. Bello. Had Mr. Bello’s
behavior constituted stalking, i.e., “the intentional and repeated following or
harassing of another that would cause a reasonable person to feel alarmed or to
suffer distress,” Ms. Riviere would not have continued to respond to his messages
positively or, more importantly, would not have continued to go to places where
she knew he would be and to dance with him, if his behavior caused her “to feel
alarmed or to suffer distress.” In addition, although Ms. Riviere filed an
“affirmation” stating that she believed that “the defendant poses a threat” to her
safety, she testified that for a year and a half, she continued to go to places where
she knew he would be and to dance with him. Further, although Ms. Riviere stated
in the petition for protection that she could provide witness statements regarding
Mr. Bello’s “bizarre behavior” and that dance class instructors “requested [she]
seek out a restraining order after also witnessing his behavior,” Ms. Riviere
presented no such evidence.
The Louisiana Supreme Court has established a two-part test for the reversal
of a fact-finder’s determinations: (1) The appellate court must find from the record
that a reasonable factual basis does not exist for the finding of the trial court, and
(2) the appellate court must further determine that the record establishes that the
finding is clearly wrong (manifestly erroneous). Stobart v. State through
Department of Transportation & Development, 617 So.2d 880, 882 (La. 1993). On
appeal, the reviewing court must do more than simply review the record for some
evidence that supports or controverts the trial court’s finding. Id. The issue to be
23-CA-372 13 resolved by a reviewing court is not whether the trier of fact was right or wrong but
whether the fact-finder’s conclusion was reasonable. Id.
A careful and thorough review of the record before us, in its entirety,
indicates that the record does not support the trial court’s finding that Ms. Riviere
carried her burden of proving the allegations alleged in the petition for protection
by a preponderance of the evidence. La. R.S. 14:40.2 provides a reasonable person
must suffer “alarm” or “emotional distress” for a protective order to be issued. La.
R.S. 14:40.3 defines cyberstalking as requiring the purpose of “threatening,
terrorizing, or harassing” a person. The evidence presented by the plaintiff does
not meet these definitions. The plaintiff’s petition and testimony stated that the
defendant’s actions made her “uncomfortable.” Louisiana law does not provide a
protective order for actions that make one “uncomfortable.” Accordingly, the trial
court abused its discretion and committed manifest error by issuing the protection
order.
CONCLUSION
For the previous reasons, we reverse, recall, and vacate the trial court’s
ruling which issued a protective order against Bernd Bello.
REVERSED; ORDER VACATED
23-CA-372 14 MELANIE RIVIERE NO. 23-CA-372
SCHLEGEL, J., DISSENTS WITH REASONS
I respectfully dissent.
During the hearing, Ms. Riviere alleged that Mr. Bello became obsessed
with her during the two-year period they country danced together. She further
testified that despite her multiple rebuffs, he continued to make “unwanted
advances romantically and/or requesting friendship.” To support her allegations,
Ms. Riviere testified about several incidents and communications that made her
uncomfortable and produced numerous text messages/exchanges between the two
of them. Ms. Riviere also revealed during her questioning of Mr. Bello that she
had purchased a gun and security cameras, and that she cannot be home alone
anymore because she is in fear of her life.
The standard of review for an appeal from a protective order was set forth in
Oliva v. Jones, 22-385 (La. App. 5 Cir. 3/29/23), 360 So.3d 573, 578, as follows:
An appellate court reviews orders of protection against abuse for an abuse of discretion. Much discretion is vested in the trial judge, particularly in evaluating the weight of the evidence which is to be resolved primarily on the basis of the credibility of the witnesses. In matters of credibility, an appellate court must give great deference to the findings of the trier-of-fact. The trial court sitting as the 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. When a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are just as reasonable. To reverse a fact-finder’s determination in an action seeking a protection from abuse order, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Whether to grant a protective order, and the extent of protection, are within the discretion of the trial court, and an appellate court will not ordinarily modify
23-CA-372 1 or reverse a trial court in such matters absent an abuse of the trial court's discretion.
(internal citations omitted).
Thus, in a case such as this, where the demeanor, body language, and
ultimately, the credibility of Ms. Riviere and Mr. Bello are critical to the court’s
findings, I do not believe that we can say the trial court was clearly wrong or that
the trial court abused its discretion.
I appreciate how the majority, or others, could read the text exchanges
between Ms. Riviere and Mr. Bello and conclude that the entire situation was a
simple misunderstanding based upon perceived mixed signals, i.e. heart emojis and
texts initiated by Ms. Riviere. But if someone read those same text messages and
considered the other actions of Mr. Bello, such as him sending flowers to Ms.
Riviere’s home, showing up at her dance studio, believing that they had been
friends for 30 years, and asking her out 22 times via Facebook messenger, then it
would also be reasonable for them to conclude that Mr. Bello was
stalking/harassing Ms. Riviere. Text messages are inherently difficult to
understand because of the lack of tone and as a result, should not be read cold.
They should be considered in context and in conjunction with witness testimony.
Accordingly, I would find that the trial court’s conclusions were not clearly
wrong and affirm the trial court’s decision. The trial court is in the best position to
weigh the evidence and judge the credibility of the witnesses.
23-CA-372 2 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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