FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-11393,
DIVISION "E" Honorable Clare Jupiter, Judge.
Douglas Howard, Jr. Jonathan C. Pedersen HOWARD REED DEL
HIERRO & PEDERSEN, COUNSEL FOR PLAINTIFF/APPELLANT.
Stephen C. Carleton Jeffrey S. Wittenbrink Carmen T. Hebert
CARLETON LORASO HEBERT & WITTENBRINK, LLC, COUNSEL FOR
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins.
CABRINA JENKINS JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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
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."
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
April 15, 2016, Ms. Ritter filed another Motion for New
Trial, again ...