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APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF VERMILION, NO. 88309-B. HONORABLE JULES D. EDWARDS, III, DISTRICT JUDGE.
John Ford Dietz, Laredo, TX, PLAINTIFF/APPELLEE: In Proper Person.
Richard Morrison, Redwood City, CA, DEFENDANT/APPELLANT: In Proper Person.
Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges. Amy, J., concurs in the result and assigns reasons.
[14-1164 La.App. 3 Cir. 1]
Richard Morrison, one of the defendants in this litigation, appeals a trial court judgment awarding the plaintiff, John Ford Dietz, $85,000.00 in damages based on a finding that he and his co-defendant sister, Anne Bennett Morrison Dietz, conspired to defame, extort money from, and intentionally inflict emotional distress on Mr. Dietz. For the following reasons, we affirm the trial court judgment.
DISCUSSION OF THE RECORD
John Ford Dietz (hereinafter referred to as " Mr. Dietz" ) and Anne Bennett Morrison Dietz (hereinafter referred to as " Mrs. Dietz" ) were formerly husband and wife; and Richard Morrison (hereinafter referred to as " Mr. Morrison" ), who is an architect and interior designer by profession, is Mrs. Dietz's brother. At the time this matter was filed, Mr. Dietz resided in Louisiana, but as of the time of trial, he had moved to Texas. At all times during this litigation, Mrs. Dietz was a resident of Mexico, and Mr. Morrison was a resident of California.
The evidentiary record establishes that Mr. Dietz married his former wife in 1990, while he was enrolled in the Paul M. Hebert Law Center at Louisiana State University in Baton Rouge, Louisiana. He graduated from the Law Center in 1992, and the couple moved to Santa Fe, New Mexico, where he clerked for an appellate
court judge for approximately two years before moving to Durango, Colorado. In 1998, after having returned to New Mexico, the couple decided to move to San Miguel de Allende, Guanajuato, Mexico (hereinafter referred to as " San Miguel" ). By the time they moved to Mexico, two children had been born of the marriage, Albert and Angus.
[14-1164 La.App. 3 Cir. 2] In 2001, the couple purchased immovable property in downtown San Miguel, including the two-story building constructed thereon. However, they placed title to the naked ownership of the property in the names of their minor children and reserved unto themselves a usufruct over the property.
One month later, in October of 2001, the couple obtained a divorce issued by a Mexican court. The original divorce decree provided that Mrs. Dietz would have custody of the minor children, with Mr. Dietz having unlimited visitation rights. Soon after the divorce, Mr. Dietz married Iniana Cardenas Dietz (hereinafter referred to as " Iniana" to distinguish her from Mrs. Dietz), a Mexican citizen. Additionally, because of circumstances present in her personal life, Mrs. Dietz voluntarily allowed the children to live with their father and Iniana, first in Acapulco, Mexico, and then back in San Miguel.
However, any semblance of post-marriage cooperation between the couple began to disappear with the passage of time. Most of the issues in dispute centered around the San Miguel immovable property, and matters came to a breaking point in January of 2006, when Mrs. Dietz hired a Mexican attorney named Ignacio Reyes Retana to review a proposal set forth by Mr. Dietz concerning the rental of part of the immovable property.
At trial, Mr. Dietz presented testimony from Mexican lawyers and United States citizens who had experience dealing with Mr. Reyes Retana, and all described him as anything but professional and ethical. He was described by witnesses as one who would corrupt the Mexican judicial system in every way [14-1164 La.App. 3 Cir. 3] possible and as a lawyer who would betray even his own client for his personal financial gain.
Mr. Dietz testified that almost immediately after his former wife hired Mr. Reyes Retana, he began receiving direct threats that he would be imprisoned on trumped-up charges; and he was subjected to other intimidation and harassment tactics originating from Mr. Reyes Retana and his agents or employees. In his testimony, he described his first meeting with Mr. Reyes Retana and Mrs. Dietz, at Mr. Reyes Retana's office in June of 2006, where he observed a stack of files, which he recognized as his personal and professional files from his office. At a later
time, Mr. Dietz testified that he met with one of Mr. Reyes Retana's associates and was told that there would be dire consequences if he did not pay Mrs. Dietz a large sum of money, transfer his usufruct in the San Miguel property to Mrs. Dietz, and cooperate in causing the children's ownership of the property to be transferred to her as well. Fearful for his safety, Mr. Dietz and his youngest son left Mexico for Gueydan, Vermilion Parish, Louisiana, where his parents lived and where his eldest son was visiting. Shortly thereafter, Iniana and their daughter joined him in Gueydan.
Approximately one year later, in July of 2007, Mrs. Dietz filed a state action in Vermilion Parish, seeking the return of the children pursuant to the International Child Abduction Remedies Act, 22 U.S.C. § 9001, et seq. (formerly 42 U.S.C. § 11601, et seq.) [14-1164 La.App. 3 Cir. 4] This action is referred to throughout the trial court testimony as " the Hague action," and for that reason, we will refer to it by that term as well. Mrs. Dietz obtained a temporary custody order from the trial court, but that order also included language that prohibited Mrs. Dietz and the children from leaving Louisiana pending a full hearing on the custody issue. Thereafter, with the temporary custody order in hand and accompanied by Vermilion Parish law enforcement officers, Mrs. Dietz physically appeared at the children's school and removed them to her custody. This occurred on August 20, 2007.
At some point after the trial court issued its temporary custody order, Mr. Dietz caused Mrs. Dietz's state action to be removed to the Federal District Court for the Western District of Louisiana, Lafayette Division. The federal district court also ordered Mrs. Dietz to remain within the court's jurisdiction pending a hearing on the custody issue. However, when the matter was called for hearing, Mrs. Dietz failed to appear because she had violated the court order by returning to Mexico and taking the children with her. The presiding judge in the federal district court proceeding issued a bench warrant for her arrest. Mr. Dietz and Iniana both testified that after Mrs. Dietz returned to Mexico, she refused to allow Mr. Dietz to communicate with the two children. Instead, she told the children that their father, not she, was an international fugitive and that she was their only hope.
On December 18, 2007, Mexican authorities took Mrs. Dietz into custody based on the bench warrant issued by the United States Federal District Court, and she and the children were subsequently returned to Louisiana. When the matter did proceed to trial on the Hague action, the federal district court ordered that the children be returned to Mrs. Dietz and returned to Mexico, the children's country [14-1164 La.App. 3 Cir. 5] of habitual residence. Dietz v. Dietz, No. 07-1398, 2008 WL 4280030 (W.D. La. Sept. 17, 2008). The judgment also ordered that Mr. Dietz pay attorney fees to Mrs. Dietz. The federal district court executed a judgment to this effect on September 17, 2008, which was affirmed on appeal. Dietz v. Dietz, 349 F.App'x 930 (5th Cir. 2009).
In October of 2008, Mr. Dietz moved with his wife and daughter back to San Miguel to be near the other children. He
testified that as soon as he returned, Mr. Reyes Retana's office renewed the threats and efforts at intimidation and harassment. At one point, he was charged with the crime of aggravated bodily injury to Mrs. Dietz, for which he was acquitted on October 20, 2009. He continued to fight for custody of his children and, in 2009, a Mexican court granted him their provisional custody.
According to Mr. Dietz, the event that caused him to realize that he could not remain in Mexico occurred on August 11, 2010. He testified that on August 3, 2010, he received an anonymous phone call, wherein the caller threatened that if he did not transfer the San Miguel property to Mrs. Dietz, pay her the money she demanded, and dismiss all legal actions against her, he would be killed. Thereafter, on August 11, 2010, while driving to his home outside of San Miguel, occupants of a passing truck shot at him with at least three projectiles striking his vehicle. After this incident, Mr. Dietz and his family, including his two sons, left Mexico and moved to Texas, where they were residing at the time of trial.
The legal proceedings continued to evolve in Mexico and, on August 12, 2011, a Mexican court found Mrs. Dietz guilty of the crime of domestic violence against Albert and Angus Dietz. The court sentenced her to serve 365 days in jail [14-1164 La.App. 3 Cir. 6] and ordered her to pay a fine to the children of $7,200.00 and $14,400.00 in Mexican pesos.
As this litigation clearly established, Mrs. Dietz was not satisfied in pursuing Mr. Dietz through the legal channels available to her in both Mexico and Louisiana; nor was she satisfied with the results achieved by Mr. Reyes Retana's strong-arm tactics. To exert even more pressure on Mr. Dietz, she enlisted the assistance of Mr. Morrison, who immediately engaged in what can best be described as a scorched earth campaign aimed directly at Mr. Dietz. This campaign began in earnest after Mr. Dietz moved to Louisiana in mid-2007. With the approval and encouragement of Mrs. Dietz, Mr. Morrison made demand on Mr. Dietz for his capitulation on a number of " Non-Negotiable" matters related to his sister, and when this was not successful, he proceeded to communicate derogatory assertions concerning Mr. Dietz to numerous agencies and individuals both inside and outside of Louisiana, many of whom were completely disconnected to the dispute between Mr. Dietz and his former wife; threatened him with the filing of professional complaints against him with the Colorado, New Mexico, and Navaho Nation Bar Associations; and causing the content of those complaints to be communicated to numerous other agencies and individuals. The not-so-subtle message in all of the communications to Mr. Dietz by Mr. Morrison was that all of Mr. Dietz's problems would disappear if he would simply give in to all of Mrs. Dietz's demands.
Perhaps the most egregious of Mr. Morrison's communications to third-parties were e-mails sent to Mr. Dietz's father, Albert Dietz, Sr., who lives in Gueydan. The first of these e-mails was sent September 7, 2007, a few days after his sister had left Louisiana with the children in violation of both the state and [14-1164 La.App. 3 Cir. 7] federal district court orders. In that e-mail, Mr. Morrison informed Mr. Dietz's father that his son had multiple felony arrests in Mexico, was " an international fugitive," and that the father should intervene and cause Mr. Dietz to see the error of his ways. Mr. Morrison also stated to Mr. Dietz's father that " [Mr. Dietz's] ability to continue to practice law is now in jeopardy and he is facing some pretty serious consequences in Mexico."
When Mr. Dietz's father failed to respond immediately in the way he wished,
Mr. Morrison forwarded a second e-mail to him on September 14, 2007. In this e-mail, Mr. Morrison expressed his disappointment in the father's lack of response and complained that Mr. Dietz's mother had somehow been " rude" to him. In a not-so-veiled threat, Mr. Morrison suggested that her rudeness had a price. Specifically, he stated that " [w]hile I'm sure she's not happy with the situation, I would think that she would be eager to do everything possible to maintain a positive relationship with Anne and me, not only for John's sake, but [for] your own future relationship with your grandchildren." (Emphasis added.) Additionally, he informed Mr. Dietz's father that Mr. Dietz had " NO parental rights at the moment." (Emphasis in the original.) This comment was despite the fact that at the time, a warrant had been issued by the federal district court for Mrs. Dietz's arrest.
This second e-mail did go a long way in confirming what happened to the personal files stolen from Mr. Dietz's San Miguel office. While in his testimony, he denied any access to Mr. Dietz's files taken from his office, Mr. Morrison informed Mr. Dietz's father that he had " court judgments beyond what you've seen, photos, recorded answering machine messages, e-mails, bank statements and [14-1164 La.App. 3 Cir. 8] account numbers, statements from John's Mexican legal assistants and other witnesses, computer files from abandoned computers, and more."
Even e-mails to Mr. Dietz were generally shared by Mr. Morrison with third-parties, including Mr. Dietz's father. Additionally, on October 23, 2007, Mr. Morrison faxed a letter to George Gardner, III, the principal of St. Peter School in Gueydan, where the children were enrolled before their mother removed them. In that letter, he apologized for Mrs. Dietz arriving at the school " with armed police officers," but without explanation, blamed that event on Mr. Dietz. The letter also described Mr. Dietz as having " a felony arrest warrant pending in Mexico for child abduction, along with other charges and judgments, including failure to pay court-ordered child support." This gratuitous language was added to the letter whose stated purpose was to request that the children's records be forwarded to a school in Mexico.
On December 3, 2007, Mr. Morrison informed Mr. Dietz by e-mail, with copies to third-parties including Mr. Albert Dietz, Sr., that he had followed through on his threat to file a complaint with the Colorado Supreme Court. In that same e-mail, he advised Mr. Dietz that he had prepared similar complaints which he intended to file with the New Mexico Disciplinary Board, as well as with the Navajo Nation. Mr. Morrison informed Mr. Dietz that these last two filings could be avoided if a resolution of Mrs. Dietz's matters could be reached. In his trial testimony, Mr. Morrison admitted that he later filed complaints with the State of New York Insurance Fraud Division and the United States Postal Fraud Investigative Department in an effort to put pressure on Mr. Dietz.
Mr. Morrison's campaign to pressure Mr. Dietz did not end after Mr. Dietz filed the February 8, 2008 action now before us, or even after Mr. Dietz and his [14-1164 La.App. 3 Cir. 9] family returned to Mexico later in that year. In fact, after Mr. Dietz and his family returned to Mexico, Mr. Morrison began communicating by e-mail with a resident of San Miguel named Kurth Bousman and enlisted Mr. Bousman's help in spreading the assertions set forth in his previous e-mails. Mr. Bousman had his own dispute with Mr. Dietz, and Mr. Morrison was not above adding fuel to flame that situation. The e-mails between these two men introduced into evidence reflect an attempt by
Mr. Morrison to expand on the purported criminal activity on the part of Mr. Dietz by suggesting that he was a part of an international money laundering operation. While professing to have no doubt concerning Mr. Dietz's involvement, Mr. Morrison stated in one e-mail that with regard to the parties involved with Mr. Dietz, he had nothing more than " major suspicions." Mr. Morrison also made it clear to Mr. Bousman in another e-mail that he wished to be very careful in what he did with regard to Mr. Dietz so " [he could] evade a lot of [Mr. Dietz's] questions." In the same e-mail, Mr. Morrison requested that Mr. Bousman be the buffer between him and Mr. Reyes Retana so that Mr. Dietz would not have discovery access to any connection between him and the lawyer.
The problem with all of Mr. Morrison's efforts to assist his sister is that as the trial court found in its reasons for judgment, his assertions were not only false, but he made no effort to check his " facts," and he had no independent knowledge of the accuracy or inaccuracy of his assertions. His defense was that he obtained all of the information from his sister, and he had no reason to doubt her. Additionally, while professing that he did not intend to damage anyone else by his actions, he considered Mr. Dietz a " deadbeat," had no regrets for what he did, and could care less about damage to Mr. Dietz.
[14-1164 La.App. 3 Cir. 10] A review of a number of other e-mails entered into evidence reflect that his actions were both with the direction and full support of Mrs. Dietz. On one occasion, Mrs. Dietz responded to a report from her brother with the comment that " YOU MADE MY DAY, DIRTY HARRY !!!!!!!!!!!!!!!!!!!!!!!!!!! . . . Great Job, Richie POO." When Mr. Morrison copied her the e-mail where he made demand on Mr. Dietz for the " Non-Negotiable" issues, she responded by repeating the " DIRTY HARRY" comment and telling her brother to " GO GET EM." She ended that correspondence by stating that " you are so meannnnnnnnnnnnnnnnnnI love it." In perhaps the most honest assessment of their activities, in yet another e-mail Mrs. Dietz told her brother that " I almost think you are really having fun." When, on one occasion Mr. Morrison was required to give his sister some unpleasant news, her response was " I HATE HIM" in extra-large print.
With regard to the accuracy of Mr. Morrison's assertions, Mr. Dietz presented evidence from his two Mexican attorneys, who represented him in all of the San Miguel litigation, that parents do not lose " parental rights" in divorce proceedings and at no time had Mr. Dietz lost his parental rights; that when a parent subject to a Mexican court's child-support obligation obtains physical custody of the children, the obligation ceases without further action on the part of parent owing the support payment;  that Mr. Dietz owed no child support or alimony to Mrs. Dietz; and that no criminal proceedings were pending against him in Mexico.
[14-1164 La.App. 3 Cir. 11] As previously stated, Mr. Dietz filed the instant action against Mr. Morrison and Mrs. Dietz on February 28, 2008, seeking damages based on a number of different causes of action. Mr. Morrison and Mrs. Dietz both answered the petition and, thereafter, jointly filed a number of exceptions. Subsequent trial court hearings
resulted in a reduction of the issues before the trial court, and the remaining issues proceeded to a six-day trial on the merits, commencing on November 7, 2011, and ending on January 10, 2012. At the close of the trial, the trial court took the matter under advisement.
On January 13, 2012, the trial court rendered a lengthy judgment which included its reasons for judgment. In that judgment, the trial court found that Mr. Morrison and Mrs. Dietz had defamed, extorted, and intentionally inflicted emotional distress on Mr. Dietz and set his damages at $85,000.00. Mr. Morrison and Mrs. Dietz responded to this judgment by filing a motion for a new trial, based on the trial court's failure to apportion fault between the two defendants and to apportion fault among a number of other individuals against whom testimony was entered at trial. Additionally, the defendants asserted in their motion for new trial that the trial court erred in finding that a civil cause of action for extortion exists under Louisiana law; erred in finding that it had personal jurisdiction over Mr. Morrison with respect to a number of the claims; and erred in finding that the actions of the defendants arose to a level sufficient to support a finding of intentional infliction of emotional distress or that Mr. Dietz even suffered emotional distress.
Following a May 14, 2012 hearing on the motion for new trial, the trial court prepared and executed an amended judgment denying the motion for new trial. [14-1164 La.App. 3 Cir. 12] The amended judgment included all of the language of the original judgment with clarifying language " to correct the phraseology of the 13 January 2012 Judgment to explicitly state that which was only implied in the prior judgment." (Emphasis in the original.) The added language was to make it clear that the trial court had concluded that Mr. Morrison and Mrs. Dietz engaged in a conspiracy to defame, extort, and to intentionally inflict emotional distress on Mr. Dietz and, therefore, were solidarily liable for the amount of the judgment.
On July 17, 2012, Mr. Dietz sought and obtained a devolutive appeal of this May 23, 2012 judgment. Nine days later, on July 26, 2912, Mr. Morrison and Mrs. Dietz also sought and obtained a joint motion for devolutive appeal. Rather than consider the matter on the merits, a separate panel of this court set aside both the original and amended judgments based on a finding that neither satisfied the form requirements of La.Code Civ.P. art. 1918. Dietz v. Dietz, 13-186 (La.App. 3 Cir. 11/6/13), 128 So.3d 1215. Additionally, the panel held that the amended judgment resulted in a substantive change from the original judgment, in violation of La.Code Civ.P. art. 1951, and that this substantive change rendered the amended judgment null and void. Concluding that this court had no final judgment to review, the panel dismissed the appeal filed by Mr. Morrison and Mrs. Dietz, and remanded the matter to the trial court " for further proceedings and the entry of a final appealable judgment." Dietz, 128 So.3d at 1220.
[14-1164 La.App. 3 Cir. 13] On remand, the trial court issued new reasons for judgment and, on May 19, 2014, executed a written judgment which reads in pertinent part:
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that for the reasons assigned in the attached Reasons for Judgment, this court finds that the plaintiff has proven the elements of defamation, extortion, intentional infliction of emotional distress, and civil conspiracy. Accordingly, Anne Bennett Morrison Dietz and Richard Morrison shall pay unto John Ford Dietz the sum of Eighty Five Thousand Dollars and 00/00 ($85,000.00). The defendants were equally at fault for causing the plaintiff's damages and are therefore jointly and solidarily liable.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that Judicial Interest in the amount of Seventeen Thousand Four Hundred Sixty Three Dollars and 32/00 ($17,463.32) is awarded to the plaintiff from the date of Judicial Demand (February 28, 2008) through the original judgment (January 13, 2012). All costs associated with these proceedings are assessed to the defendants equally.
The attached reasons for judgment constituted a very slightly altered repeat of the reasons found in both the original and amended judgment rendered by the trial ...