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NO. 2017-CA-0517 (La. Ct. App. Dec. 22, 2017)

NO. 2017-CA-0517



D. Douglas Howard, Jr. Jonathan C. Pedersen HOWARD REED DEL HIERRO & PEDERSEN 839 St. Charles Avenue, Suite 306 New Orleans, LA 70130-3743 COUNSEL FOR PLAINTIFF/APPELLANT Stephen C. Carleton Jeffrey S. Wittenbrink Carmen T. Hebert CARLETON LORASO HEBERT & WITTENBRINK, LLC 445 North Boulevard, Suite 625 Baton Rouge, LA 70802 COUNSEL FOR DEFENDANT/APPELLEE

NO. 2016-11393, DIVISION "E"
Honorable Clare Jupiter, Judge (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins) LOBRANO , J., CONCURS IN THE RESULTS. D. Douglas Howard, Jr.
Jonathan C. Pedersen
839 St. Charles Avenue, Suite 306
New Orleans, LA 70130-3743

Jeffrey S. Wittenbrink
Carmen T. Hebert
445 North Boulevard, Suite 625
Baton Rouge, LA 70802



This is an action for damages for spoliation of evidence arising from a separate filiation and child support suit brought by appellant Jana Ritter against appellee Victor Loraso, III. Ms. Ritter alleges that, in the domestic proceeding, Mr. Loraso intentionally concealed or refused to produce relevant audio and video recordings in which he may have made improper statements to the parties' minor child. Ms. Ritter appeals the trial court's March 20, 2017 judgment granting Mr. Loraso's peremptory exception of prescription, and dismissing Ms. Ritter's action. For the reasons that follow, we reverse the trial court's judgment and remand for further proceedings.


The Domestic Action

On April 4, 2013, Ms. Ritter filed a Petition to Establish Filiation and Child Support (the "Domestic Action"), naming Mr. Loraso as the defendant. Mr. Loraso, an attorney, represented himself. In the Domestic Action, Ms. Ritter sought to establish that Mr. Loraso was the father of her then-unborn child and, thereafter, to obtain child support.

On February 12, 2014, the parties entered into a consent judgment wherein Mr. Loraso formally acknowledged that he was the father of the minor child, and the parties established, on an interim basis, joint custody, visitation guidelines, and child support obligations. On March 20, 2014, Mr. Loraso filed a motion asking the trial court to designate him as the primary domiciliary parent, and give him equal physical custody of the child. On April 23, 2014, Ms. Ritter filed a motion seeking sole custody of the child.

The child custody trial was held on July 13-14, 2015, and November 9-12, 2015. On December 15, 2015, the trial court signed a judgment granting the parties joint custody of the minor child. The judgment also designated Ms. Ritter as the domiciliary parent, and gave Mr. Loraso visitation according to graduated physical custody schedule to be set by the court.

Thereafter, Ms. Ritter filed a Motion for New Trial seeking a modification of the December 15, 2015 judgment based, in part, on the alleged spoliation of evidence by Mr. Loraso in the form of video and audio tapes which he refused to produce in response to Ms. Ritter's discovery requests. On December 23, 2015, Mr. Loraso filed an opposition to Ms. Ritter's Motion for New Trial in which he stated that, with respect to video and audio recordings, "admittedly, [he] produced some, but not all, to Ms. Ritter." Mr. Loraso also stated that "[t]he court heard extensive argument, multiple times, on this issue at trial, and ruled from the bench that the failure to produce the videos warranted an adverse inference."

On February 1, 2016, a hearing was held on Ms. Ritter's Motion for New Trial. On April 5, 2016, the trial court signed a judgment granting the motion. In the judgment, the trial court again designated Ms. Ritter as the domiciliary parent of the child, and gave Mr. Loraso visitation according to graduated physical custody periods to be set forth by the court. In its Reasons for Judgment, the court stated that, in rendering the judgment, it had "consider[ed] the adverse inference against Mr. Loraso for spoliation of evidence."

On April 15, 2016, Ms. Ritter filed another Motion for New Trial, again alleging spoliation of evidence:

The failure to produce this evidence is highly unfair and injurious to Ms. Ritter. This type of blatant disregard for the judicial process and fair play should not go unaddressed, and merely stating that the Court considered an adverse inference against Mr. Loraso for spoliation of evidence does not address the issue. Ms. Ritter and the Court were entitled to the truth of the content of these recordings. Mr. Loraso has used their alleged content in making accusations against Ms. Ritter in order to manipulate the custody arrangement of Ms. Ritter and Mr. Loraso's daughter. A trial which addresses the best interests of a child should not be subjected to this type of manipulation.

The trial court held a hearing on Ms. Ritter's second Motion for New Trial on June 9, 2016. On June 29, 2016, the trial court signed a judgment denying in part and granting in part Ms. Ritter's motion. The court granted the Motion for New Trial on the grounds of spoliation, saying:

Generally, where a party destroys, conceals, or fails to produce evidence within his or her control, it gives rise to an adverse presumption that had the evidence been produced, it would have been detrimental to the litigant's case. Mr. Loraso alleged that the recordings supported the claims of his petition for custody of the minor child. More specifically, Mr. Loraso asserted, both in his pleadings and in hearings before the Court, to possess video and audio recordings wherein Ms. Ritter was alleged to regularly interfere with and interject herself into his supervised visitation time with the minor child. Ms. Ritter alleged that the audio and video recording would actually demonstrate that she was an observer who intervened only as necessary regarding the care of the minor child. Ms. Ritter further averred that the audio and video recordings would also demonstrate that in addition to having offered the child beer, Mr. Loraso also left an unidentified pill on a coffee table within reach of the minor child. The production of these recordings was ordered by the Court on October 29, 2014. Counsel for Mr. Loraso indicated that the evidence would be produced. As of July 13, 2015, the first day of trial in this matter, evidence had not been produced. Therefore, this Court finds that Mr. Loraso committed spoliation of evidence when he failed to produce the audio and video recordings in his possession in accordance with the orders of this Court. As a result of this ruling, the Court presumed that the audio and video recordings would not only have failed to show Ms. Ritter interfering with and interjecting herself into the supervised visitation, but would have also corroborated Ms. Ritter's testimony that Mr. Loraso offered the child a beer and left an unidentified pill in reach of the minor child.

The trial court also ordered that Mr. Loraso be evaluated by a physician to determine whether his prescribed medications affected his ability to be the sole caretaker of the child for an extended period of time. The court also issued a detailed visitation schedule for Mr. Loraso.

The Spoliation Action

On November 17, 2016, Ms. Ritter filed a Petition for Damages against Mr. Loraso asserting a cause of action for spoliation of evidence (the "Spoliation Action"). Ms. Ritter alleged that Mr. Loraso "intentionally concealed, or otherwise refused to produce relevant audio and video recordings that were in his possession [and] which document[ed] visitations with the minor child at Mr. Loraso's home, as well as visitation exchanges."

On December 27, 2016, Mr. Loraso filed Peremptory Exceptions of Prescription, Res Judicata, and No Cause of Action. In the Exception of Prescription, Mr. Loraso argued that Ms. Ritter's spoliation claim was prescribed because she did not bring the Spoliation Action until November 17, 2016, more than one year after the last day of the custody trial, which was on November 12, 2015. After a hearing on February 17, 2017, the trial court signed a judgment dated March 20, 2017 granting Mr. Loraso's Exception of Prescription, and dismissing Ms. Ritter's action. The trial court denied the Exceptions of Res Judicata and No Cause of Action. Ms. Ritter timely appealed.


Standard of Review

"When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review." In re Med. Review Panel of Hurst, 16-0934, p. 4 (La. App. 4 Cir. 5/3/17), 220 So.3d 121, 125-26, writ denied, 17-803 (La. 9/22/17), 228 So.3d 744, 2017 WL 4546566. "The relevant issue in a manifest error inquiry is not whether the finder of fact was right or wrong, but whether its decision was a reasonable one." Id., 16-0934, p. 4, 220 So.3d at 126.

"If the trial court commits an error of law, however, the applicable standard of review is de novo." Richard v. Richard, 14-1365, p. 9 (La. App. 4 Cir. 6/3/15), 171 So.3d 1097, 1102-03. "The standard controlling our review of a peremptory exception of prescription also requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished." Jones v. Sewerage & Water Bd., 16-0691, p. 3 (La. App. 4 Cir. 3/8/17), 213 So.3d 497, 499.

Spoliation of Evidence

Louisiana recognizes a cause of action for intentional spoliation. Fiveash v. Pat O'Brien's Bar, Inc., 15-1230, p. 8 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 918. "The theory of 'spoliation of evidence' refers to an intentional destruction of evidence for [the] purpose of depriving opposing parties of its use." Quinn v. RISO Inv., Inc., 03-0903, p. 5 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 926-27. "The tort of spoliation of evidence has its roots in the evidentiary doctrine of 'adverse presumption', which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction was adequately explained." Id., 03-0903, p. 5, 869 So.2d at 927.

Louisiana has no cause of action for negligent spoliation of evidence. Reynolds v. Bordelon, 14-2362, p. 14 (La. 6/30/15), 172 So.3d 589, 600. --------

Spoliation, as an intentional tort, is a delictual action subject to the one-year liberative prescriptive period set forth in La. C.C. art. 3492. Olympia Minerals, LLC v. HS Resources, Inc., 13-110, p. 23 (La. App. 3 Cir. 4/1/15), 162 So.3d 674, 689. Under La. C.C. art. 3492, prescription "commences to run from the day injury or damage is sustained." "When damages are not immediate, the action in damages thus is formed and begins to prescribe only when the tortious act actually produces damage and not on the day the act was committed." Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La. 1992). For purposes of commencing prescription, the damage suffered must at least be actual and appreciable in quality - that is, determinable and not merely speculative. Id.

The trial court found that prescription began to run "the day [] that the trial of the [custody] matter was held where the videos could have been useful." The trial court concluded that Ms. Ritter's Spoliation Action was prescribed because the trial of the Domestic Action began on July 13, 2015 and ended on November 12, 2015, and Ms. Ritter did not file her Spoliation Action until November 17, 2016, more than a year later.

On appeal, Ms. Ritter argues that prescription began to run on December 15, 2015, when the trial court rendered its judgment in the Domestic Action, so that her Spoliation Act was filed timely. In the alternative, Ms. Ritter contends that she did not learn that Mr. Loraso had intentionally concealed the video and audio tapes until December 23, 2015, when he admitted such in his opposition to her Motion for New Trial. Mr. Loraso contends that prescription began to run when the trial of the Domestic Action ended. We must decide when a cause of action begins to run for intentional spoliation of evidence.

Neither party cites case law supporting their arguments as to the accrual date for Ms. Ritter's cause of action for spoliation, and we found only one Louisiana case that addressed this issue. In Clavier v. Our Lady of the Lake Hosp., Inc., 12-0560, p. 13 (La. App. 1 Cir. 12/28/12), 112 So.3d 881, 890, the First Circuit found that a cause of action for spoliation of evidence arises on the date that the plaintiff learned of the loss or destruction of the evidence, and not on the date of the unfavorable ruling on plaintiff's underlying medical malpractice action.

We do not find Clavier persuasive. As discussed above, prescription does not begin to run until the plaintiff sustains actual (not merely speculative) damages. During the trial of the Domestic Action, whether Ms. Ritter would suffer actual damages from the loss of the evidence was wholly speculative. It was only when the underlying Domestic Action was resolved by judgment that the damage would have became demonstrable. Hence, we agree with courts in other states which have concluded that a spoliation claim does not begin to accrue until the plaintiff has sustained actual harm, which occurs when the underlying claim has been resolved. See Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990) ("we believe resolution of a plaintiff's underlying claim is necessary to demonstrate actual harm and prevent speculative recovery in a spoliation action"); Mayfield v. Acme Barrel Co., 629 N.E.2d 690, 695 (Ill. App. Ct. 1994) ("The threat of some future harm that has not yet been realized is insufficient to satisfy this [actual injury] element of the claim and, as such, no action for spoliation can be brought until after the underlying claim which is dependent upon the missing evidence is lost."); Fox v. Cohen, 406 N.E.2d 178, 183 (Ill. App. Ct. 1980) (affirming dismissal of claim for destruction of evidence because underlying medical malpractice action was still pending, so that "plaintiff has not yet sustained any injury"); Jimenez v. Community Asphalt Corp., 968 So.2d 668, 672 (Fla. Dist. Ct. App. 2007) ("[T]he damage in a spoliation claim is the inability to use the evidence in the underlying proceedings. For this reason, damages in a spoliation claim can only be determined after the underlying claim is decided."); Kent v. Construzione Aeronatiche Giovanni Agusta, No. 90-2233 (E.D. Pa. Sept. 20, 1990), 1990 WL 139414, at * 7 ("[I]t is only after litigation of the underlying claims that the extent to which plaintiff was prejudiced by the destruction of evidence becomes clear."); Baugher v. Gates Rubber Co., 863 S.W.2d 905, 913 (Mo. Ct. App. 1993) ("the underlying action must be resolved and damage thus established before a cause of action for negligent spoliation will arise"). See Maria A. Losavio, Synthesis of Louisiana Law on Spoliation of Evidence - Compared to the Rest of the Country, Did We Handle It Correctly?, 58 LA. L. REV. 837, 856 (Spring 1998) ("One way courts have tried to define prejudicial injury is by requiring the plaintiff to first litigate the underlying lawsuit prior to bringing the spoliation-of-evidence tort claim.") (collecting cases).

We are also persuaded by decisions of Louisiana courts that have adopted a similar rule for the accrual of prescription on other tort actions arising from litigation-related misconduct. In Marchand v. Miazza, 151 So.2d 372 (La. App. 4th Cir. 1963), and Demery v. Voelker, 216 So.2d 328 (La. App. 4th Cir. 1968), the plaintiffs brought actions for legal and notarial malpractice in which they alleged that the defendants' neglect in prior proceedings had caused them to lose certain property rights. In both cases, when the malpractice suits were filed, the other litigation was still pending to decide whether the plaintiffs had any ownership rights in the property involved. This court concluded in Marchand and Demery that the one-year prescriptive period for the malpractice suits did not commence until plaintiffs had suffered damage in the form of adverse judgments in the separate pending lawsuits. Marchand, 151 So.2d at 375-76; Demery, 216 So.2d at 332.

Likewise, in Hero Lands Co. v. Borello, 459 So.2d 658 (La. App. 4th Cir. 1984), the plaintiffs brought a tort action against a court reporter for damages resulting from the loss of a transcript of trial testimony in a prior proceeding. Although the plaintiffs were aware that the transcript had been lost more than two years prior to filing suit, this court found that their tort claim was not prescribed because it was brought within one year of the trial court's judgment ordering a retrial of the underlying action, to the plaintiffs' detriment or injury.

In Giordano v. Tullier, 139 So.2d 15 (La. App. 4th Cir. 1962), the plaintiff filed a tort action for malicious prosecution of a civil suit and for alleged libel contained in the pleadings in that suit. This court held that prescription did not begin to run until the underlying proceeding terminated with a final judgment. See also Marionneaux v. King, 331 So.2d 180 (La. App. 4th Cir. 1976) (termination of underlying legal proceedings wherein defamatory statements were allegedly made must occur before cause of action for libel and slander is perfected); Ortiz v. Barriffe, 523 So.2d 896 (La. App. 4th Cir. 1988) (reversing judgment granting exception of prescription because "an action for defamation arising out of allegations made in judicial proceeding[s], and made against a party to those proceedings, cannot be brought until those proceedings are terminated.").

Based on these authorities, we find that prescription begins to run on a claim for intentional spoliation of evidence when the plaintiff actually suffers damages, which is when a final judgment is rendered in the underlying action, and not when the plaintiff learns of the destruction or loss of the evidence.

Applying this rule, we find that prescription began to run on Ms. Ritter's claim for spoliation of evidence on June 29, 2016, when the trial court rendered its final custody judgment in the underlying Domestic Action. Ms. Ritter filed her Spoliation Action on November 17, 2016, well within the one-year prescriptive period. The trial court, therefore, erred in finding that Ms. Ritter's cause of action was prescribed.


Based on the foregoing, we reverse the trial court's judgment sustaining Mr. Loraso's Exception of Prescription, overrule the exception, and remand the case to the trial court for further proceedings consistent with this opinion.