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Ritter v. Loraso

Court of Appeals of Louisiana, Fourth Circuit

December 22, 2017

JANA RITTER
v.
VICTOR LORASO, III

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-11393, DIVISION "E" Honorable Clare Jupiter, Judge.

          D. 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 DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins.

          SANDRA CABRINA JENKINS JUDGE.

         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.

         FACTUAL AND PROCEDURAL BACKGROUND

         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 ...


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