Tallys White v. Officer X (Individually and in his official capacity as a Trooper with the Louisiana State Police), Michael D. Edmonson (Individually and in his official capacity as a Colonel with the Louisiana State Police), Louisiana State Police, (Through Louisiana De

• Court: Louisiana Court of Appeal
• Decided: October 8, 2021
• Docket: 2021CA0109
• Status: Unknown

Opinion

STATE OF LOUISIANA

y COURT OF APPEAL

FIRST CIRCUIT

y 2021 CA 0109

TALLYS WHITE

VERSUS

OFFICER X (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS A TROOPER WITH THE LOUISIANA STATE POLICE), MICHAEL D. EDMONSON ( INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS COLONEL WITH THE LOUISIANA STATE POLICE), LOUISIANA STATE POLICE, ( THROUGH LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS), SHERIFF DANIEL EDWARDS ( INDIVDUALLY AND IN HIS OFFICAL CAPACITY AS SHERIFF OF TANGIPAHOA PARISH), DEPUTY ALBERT SHARP ( INDVIDUALLY AND IN HIS OFFICIAL CAPACITY AS DEPUTY FOR THE TANGIPAHOA PARISH SHERIFF' S OFFICE), CHIEF RODDY DEVALL (INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF FOR THE CITY OF HAMMOND POLICE DEPARTMENT), OFFICERS Y (INDVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS OFFICRES FOR THE CITY OF HAMMOND POLICE DEPARTMENT), WARDEN HOWARD PRINCE ( INDVIDUALLY AND IN HIS OFFICIAL CAPACITY AS WARDEN FOR THE ELAYN HUNT CORRECTIONAL CENTER), ELAYN HUNT CORRECTIONAL CENTER

Judgment rendered: ACT 0 8 2021

On Appeal from the Eighteenth Judicial District Court In and for the Parish Iberville, State of Louisiana No. 71059, Section A

The Honorable J. Kevin Kimball, Judge Presiding

Edmond D. Jordan Attorneys for Plaintiff/Appellant

Brusly, Louisiana Tallys White and

Elton Herron Geismar, Louisiana

Ashley E. Bass Attorneys for Defendants/ Appellees Jamie A. Polozola Gomez Daniel Edwards, individually and in Hammond, Louisiana his official capacity as Sheriff of Tangipahoa Parish, and Deputy Albert Sharp in his official capacity as Deputy for the Parish of Tangipahoa

Timothy R. Richardson Attorney for Defendant/Appellee Madisonville, Louisiana Chief Roddy Devall, individually and in his official capacity as Chief for the City of Hammond Police Department

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.

This is an appeal from a trial court judgment dismissing with prejudice the

plaintiff' s claim on a motion for involuntary dismissal during a bench trial.

FACTUAL AND PROCEDURAL HISTORY

On the night of November 24, 2010, law enforcement was on lookout for an

older model Cadillac possibly occupied by two African-American males that

committed an armed robbery in Tangipahoa Parish. Tangipahoa Parish Sheriff' s

Deputy Albert Sharp ( Deputy Sharp), the K-9 holder for the Tangipahoa Parish

Sheriff' s Office, observed an older model blue Cadillac that had two African-

American occupants inside. Deputy Sharp pulled his vehicle behind the suspect

vehicle and notified dispatch of the two possible suspects. Several other police

officers followed Deputy Sharp' s vehicle in pursuit of the suspect vehicle. Deputy

Sharp attempted to stop the vehicle by using the emergency lights and siren, but

the vehicle fled. A chase then ensued throughout the city reaching speeds of 80

miles per hour. A gun was allegedly thrown from the window of the fleeing

vehicle. The vehicle chase ended when the plaintiff, Tallys White, stopped his

vehicle in a driveway on Tillman Road and began running behind a house. Deputy

Sharp stopped his vehicle, released the K-9, and began running towards the

plaintiff shouting " Sheriff's Office, K-9 stop" while the dog chased the plaintiff

behind the house.

When Deputy Sharp and the K-9 ran to the back of the house, the plaintiff

was climbing the hoses of the line for the air conditioner unit attempting to get on

the roof of the home. While attempting to detain the plaintiff in custody, Deputy

Sharp and the plaintiff both hit the air conditioner unit, knocking it over, while

falling to the ground. The plaintiff landed face first on the ground and the K-9 bit

him on the ankle and near the buttocks)

I Deputy Sharp was also bit by the K-9 during the tussle. 3 On November 23, 20111 the plaintiff filed a petition for damages against

several defendants, including Deputy Sharp, Sheriff Daniel Edwards ( Sheriff

Edwards), and Chief Roddy Devall ( Chief Devall),' alleging that as a result of the

incident on November 24, 20105 the plaintiff sustained injuries that made him

unable to work and required continuous medical treatment. 3 The plaintiff made

several claims against the defendants including that the defendants failed to follow

proper procedure, failed to follow proper protocol, falsely arrested the plaintiff,

exercised excessive force, and intentionally and/or negligently inflicted emotional

distress upon the plaintiff.4 Therefore, the plaintiff requested $ 50, 000. 00 in

damages. The defendants answered the plaintiff' s petition denying the plaintiff' s

allegations and asserting several affirmative defenses.

After various pleadings were filed, a bench trial was held on November 8,

2019. 5 Several witnesses testified at the bench trial, including the plaintiff, Deputy

Sharp, Sergeant Thomas Mushinsky with the City of Hammond Police Department

Sergeant Mushinsky), Road Officer Derrick Foster with the City of Hammond

Police Department ( Officer Foster), Road Sergeant Sharah M. Finn with the

2 All references to law enforcement officials are to their rank in 2010

3 The plaintiff named several other defendants in his petition for damages that were either dismissed from the case or they are irrelevant to the instant matter.

4 The plaintiff also alleged that the defendants violated Article I, Section 2 and Article 1, Section 5 of the Louisiana Constitution; falsely imprisoned the plaintiff; denied the plaintiff medical attention, and committed assault and battery against him.

5 A motion for summary judgment was signed in favor of Chief Devall, Deputy Sharp, and Sheriff Edwards, dismissing the plaintiff' s claims with prejudice. On July 16, 2014, the plaintiff filed a " Motion for Reconsideration of order granting Defendants' Motion for Summary Judgment." On September 2, 2014, the trial court signed an order granting the plaintiff a devolutive appeal. The trial court granted the plaintiff's motion for reconsideration on November 5, 2014. We note that it appears that the order granting the plaintiffs devolutive appeal was premature in accordance with La. C. C. P. art. 2087( D), as there was an outstanding motion for new trial. See Harris v. Louisiana Department of Public Safety and Corrections, 2019- 1657 ( La. App. 1 Cir. 8/ 3/ 20), 310 So. 3d 211, 214 ( This Court held that a motion to reconsider is generally treated as a motion for new trial if the judgment is a final appealable judgment. In such a case, the motion is considered premature if granted before the court disposes of all timely filed motions for new trial.) 11 Tangipahoa Parish Sheriff' s Department ( Sergeant Finn), and Terrance Peters.' At

the conclusion of the bench trial, the defendants made a motion for involuntary

dismissal in accordance with La. C. C. P. art. 1672( B). After considering all of the

evidence presented, the trial court granted the defendants' motion for involuntary

dismissal as to all of the defendants with prejudice. In its oral reasons, the trial

court stated, in pertinent part:

T] he defense has moved for a[ n] ... involuntary dismissal. I think I' m required to weigh all the evidence that' s submitted at this point. I think the burden that the plaintiffs have to prove -- to prove to me by a preponderance of the evidence..... You know, I really feel the plaintiff] put himself in this situation. You know, I think his injuries came from this incident. I believe that, but the question is whether the police used excessive force or not. I find the most credible witness and not just because [ the plaintiff] said he was a good guy, before he said that, I found [ Deputy] Sharp to be the most credible witness. You know, he was in for everybody' s testimony. He could have very easily changed his to fit the Hammond Police Officers, and he didn' t. I don' t know what they were doing. I know what I was doing. And he testified that [ the plaintiff) was climbing up on a roof, and he had to pull him down. You know, and that' s where we get into -- to where I' m looking at the evidence of the dog bite of him. You know, when he talked about the training of the dog. He d[ oes not] get in a tussle. He let' s the dog do the tussling. So that' s why I believe him about the thing with the roof because he' s trying to reach for the guy, the dog jumped up and grabbed him by mistake. If the guy is on the ground, I don' t see [ Deputy] Sharp getting on the ground with him. He' s going to let the dog handle it. I believe [ the plaintiff] was injured in this incident, this tussle, this resisting that occurred. You know, [ Deputy]Sharp said he got out and he ran around the building. He went back there and saw [ the plaintiff] climbing up, jumped on there. I believe that.... I mean, the only person I heard that the plaintiff] got brutalized by the police officers is [ the plaintiff). I don' t feel it' s been proven to me by a preponderance of the evidence. Therefore, I' m granting the Involuntary Motion for Dismissal.

The trial court signed a judgment in accordance with its oral ruling on November

26, 2019. Thereafter, the plaintiff appealed.

The plaintiff also offered the testimony of Sandra Peters, the plaintiff' s aunt, via deposition. 1 APPLICABLE LAW

Louisiana Code of Civil Procedure article 1672( B) 7 provides the basis for an

involuntary dismissal at the close of a plaintiff's case in a bench trial, when the

plaintiff has not shown a right to relief based on the facts and law. Lakeshore

Chrysler Dodge Jeep, Inc. v. Windstream Communications, Inc., 2017- 0841

La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d 939, 942. In a nonjury case,' the

appropriate standard for the trial court' s determination of a motion to dismiss is

whether the plaintiff has presented sufficient evidence in its case -in -chief to

establish its claim by a preponderance of the evidence. Hutzler v. Cole, 93- 0468

La. App. 1 Cir. 3/ 11/ 94), 633 So. 2d 1319, 1323, writ denied, 94- 0850 ( La.

5/ 13/ 94), 637 So. 2d 1070. The trial court examines the evidence as a whole,

without any special inferences in favor of the opponent to the motion, to determine

whether the fact or cause sought to be proved is more probable than not.

Lakeshore Chrysler Dodge Jeep, Inc., 240 So. 3d at 942- 43. However, absent

circumstances in the record that cast suspicion on the reliability of the testimony

and sound reasons for its rejection, uncontroverted evidence should be taken as

true to establish a fact for which it is offered. Id., 240 So. 3d at 943.

The trial court' s grant of an involuntary dismissal is subject to the manifest

error standard of review. Broussard v. Voorhies, 2006- 2306 ( La. App. 1 Cir.

9/ 19/ 07), 970 So. 2d 1038, 1041, writ denied, 2007- 2052 ( La. 12/ 14/ 07), 970 So. 2d

535. Therefore, in order to reverse a grant of involuntary dismissal, we must find

that there is no factual basis for the trial court' s finding or that the finding is clearly

7 Louisiana Code of Civil Procedure article 1672( B) provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

8 In a jury case, the proper motion is a motion for directed verdict. See La. C. C. P. art. 1810. 0 wrong. Id., 970 So. 2d at 1042. See also Stobart v. State through Dept. of

Transp. and Development, 617 So. 2d 880, 882 ( La. 1993). The issue to be

resolved is not whether the trial court was right or wrong, but whether its

conclusion was a reasonable one. See Stobart, 617 So. 2d at 882.

Even though an appellate court may feel its own evaluations and inferences

are more reasonable than the trial court' s, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review where conflict

exists in the testimony. Id. Moreover, where two permissible views of the

evidence exist, the fact finder' s choice between them cannot be clearly wrong. Id.,

617 So. 2d at 883. Additionally, the principle that questions of credibility are for

the trier of fact applies to the evaluation of expert testimony as well, unless the

stated reasons of the expert are patently unsound. Hutzler, 633 So. 2d at 1324.

DISCUSSION

In his sole assignment of error, the plaintiff argues that the trial court erred

in granting the defendants' motion for involuntary dismissal. Specifically, the

plaintiff argues that the testimonial evidence presented at the bench trial from

himself, his aunt, Sandra Peters, and his cousin, Terrance Peters, showed that the

defendants used excessive force on the plaintiff that resulted in his injuries. At the

bench trial, the plaintiff testified that he knowingly fled from the police on a " high

speed chase." When asked why he did not stop for the police officers, the plaintiff

stated that it was strange to him that the police officers were following him

because he was within the city limits and a sheriff was following him. The

plaintiff made several allegations at the bench trial regarding the November 2010

incident including that he was punched seven or eight times in the face by the

police officers, bit by the K-9 several times in different areas of his body, and that

his head was slammed into the air conditioner unit by a police officer resulting in a

head injury. However, the plaintiff could not identify who hit him.

7 The plaintiff further testified that he never attempted to jump on top the air

conditioner unit though he later testified that the top of his head hit the air

conditioner unit. When asked how his head hit the air conditioner unit, the

plaintiff stated that the police officers " slammed [ his] head into it." The plaintiff

further testified that once he was handcuffed, the police officers began beating his

face. The plaintiff stated that when he could not take any more punches on one

side of his face, he turned over to the other side to let the police officers beat him.

The defendants' counsel questioned the plaintiff about his medical records as to

why the records do not reveal that the plaintiff had any injuries to the right side of

his face. The defendants counsel pointed out that although the plaintiff alleges that

he was hit several times in the face by the police officers, his medical records

reveal that only one side of his face had visible bruising.

In support of his position, the plaintiff submitted the testimony of Sandra

Peters and Terrance Peters, who were both present when the incident occurred.

Sandra Peters' deposition testimony in 2013 revealed that she never physically saw

the plaintiff being beaten by police officers, " but [ she] could tell that he was being

beaten." However, in 2019 her testimony changed in that she saw a beating to the

plaintiff that lasted fifteen or twenty minutes. Similar to Sandra Peters 2013

deposition testimony, Terrance Peters' testimony at the bench trial revealed that he

never saw a police officer strike the plaintiff.

Several officers testified at the bench trial in support of the defendants'

position that excessive force was not used on the plaintiff. Deputy Sharp testified

that he never hit the plaintiff and he never saw a police officer hit the plaintiff.

Deputy Sharp further testified that the only injuries he observed on the plaintiff

were the K-9 bites to his ankle and buttocks. Deputy Sharp also confirmed that he

did not see blood on the plaintiff's face. Sergeant Mushinsky testified that when

he got to the rear of the home, he saw Deputy Sharp on the scene with his K-9 and the plaintiff was on the ground kicking the dog and yelling. Sergeant Mushinsky

further testified that the plaintiff was not following verbal commands, so he

approached him and attempted to place the plaintiff into custody. When he did

this, the plaintiff "struck [ him] and attempted to bite [ him.]"

Officer Foster testified that his vehicle was second in line behind Deputy

Sharp during the November 2010 incident. Officer Foster stated that the plaintiff

and the police officers engaged in a high- speed chase because the plaintiff refused

to stop his vehicle. Officer Foster further testified that once the plaintiff stopped

his vehicle and ran around the house, Officer Foster ran around the house as well

to find the plaintiff and Deputy Sharp. Once he got to the side of the house,

Officer Foster stated that he saw the plaintiff "hanging off the side of the house by

way of the [ air conditioner] lines." Officer Foster corroborated Deputy Sharp' s

testimony that the police officers ordered the plaintiff to get down, but he did not

comply. Once the police officers got the plaintiff down from the air conditioner

unit, Officer Foster stated that the plaintiff was swinging and kicking at the police

officers and the K-9. Officer Foster confirmed that he did not see any police

officer punch, kick, or strike the plaintiff.

After the trial court heard the testimony from the plaintiff and the witnesses,

the trial court found that Officer Sharp was the most credible witness. The trial

court stated that " the evidence is more consistent with what Officer Sharp said as

to how [ the plaintiff) got his injuries[,] which was falling from the roof onto the air

conditioner unit." Thus, the trial court determined that the plaintiff's injuries came

from Officer Sharp pulling the plaintiff down from the roof.

In matters of credibility, an appellate court gives great deference to the

findings of the trier of fact. Price v. Exxon Corp., 95- 0392 ( La. App. 1 Cir.

11/ 9/ 95), 664 So. 2d 1273, 1277. It is the task of the trial judge to determine the

credibility of the witnesses and this determination will not be disturbed absent

E manifest error. Rich v. Jurasin, 2012- 0159 ( La. App. 1 Cir. 11/ 2/ 12), 2012 WL

5383320, at * 3( unpublished). Where a fact finder' s finding is based on its

decision to credit the testimony of one or more witnesses, that finding can virtually

never be manifestly erroneous or clearly wrong. Mt. Everett African Methodist

Episcopal Church v. Carter, 96- 2591 ( La. App. 1 Cir. 12/ 29/ 97), 705 So. 2d

1179, 1183. Accordingly, we find no error in the trial court' s finding that Officer

Sharp was more credible than the plaintiff based on the discrepancies between the

plaintiffs' testimony and the police officers' testimonies. Due to the trial court

finding Officer Sharp to be more credible and accepting his version of the facts as

to how the plaintiff was injured, we find that the trial court did not err in holding

that the plaintiff did not establish his case by a preponderance of the evidence. See

Ragas v. Hingle, 2013- 1577 ( La. App. 4 Cir. 7/ 9/ 14), 146 So. 3d 687, 691.

After a thorough review of the record, including the transcript of the bench

trial, we find that the trial court was not manifestly erroneous in granting the

defendants' motion for involuntary dismissal based on finding that the plaintiff did

not establish his claim by a preponderance of the evidence. Based on the evidence

offered and testimony presented, the plaintiff failed to show by a preponderance of

the evidence that the defendants used excessive force on the plaintiff during the

November 2010 incident. The trial court noted that the testimony showed that

many people were at the scene of the November 2010 incident; however, the only

individual who testified that he was struck by police officers was the plaintiff

himself. Considering our finding that a reasonable factual basis exists for the trial

court' s determination that the plaintiff did not satisfy his burden of proof, we find

no error in the trial court' s granting the defendants' motion for an involuntary

dismissal.

10 CONCLUSION

The November 26, 2019 judgment of the trial court granting the motion for

involuntary dismissal and dismissing Tallys White' s claim with prejudice is

affirmed. All costs of this appeal are assessed to the plaintiff, Tallys White.

AFFIRMED.