GREGORY MOUTON MARIVETTE MOUTON v. LOWE HOME CENTERS LLC LOWE HOME IMPROVEMENT DAVID DEBENEDETTO SHANE LAST NAME UNKNOWN TREMYA ANTHONY KELSI LAST NAME UNKNOWN (2025)

This matter is before us on appeal by plaintiffs, Gregory P. Mouton and Marivette V. Mouton, from judgments of the trial court vacating a judgment of default and granting an exception of no cause of action filed by defendant, Lowe's Home Centers, LLC D/B/A Lowe's Home Improvement, and dismissing the Moutons’ claims with prejudice. Lowe's Home Centers, LLC D/B/A Lowe's Home Improvement filed an answer to the appeal.

For the reasons that follow, we affirm the March 12, 2024 order of the trial court vacating the October 27, 2023 default judgment. Moreover, we affirm the portion of the March 13, 2024 judgment granting Lowe's exception of no cause of action, reverse the portion of the March 13, 2024 judgment dismissing the Moutons’ suit with prejudice, and remand this matter to the trial court with instructions to allow the Moutons an opportunity to amend their petition. Finally, we deny the answer to appeal.

FACTUAL AND PROCEDURAL HISTORY

On July 19, 2023, Gregory P. Mouton and Marivette V. Mouton filed a petition seeking damages against Lowe's Home Improvement Centers, LLC D/B/A Lowe's Home Improvement (hereinafter “Lowe's”) for acts of its employees, David DeBenedetto, Shane (last name unknown), Tremya Anthony, and Kelsi (last name unknown), as a result of an incident that occurred at the Lowe's store located on Millerville Road in Baton Rouge on July 20, 2022.¹ The Moutons alleged that they arrived at the Lowe's Customer Service Desk at approximately 8:15 p.m. after receiving a notification that their online order was ready for pickup in the garden supply center. The Moutons alleged that several employees of Lowe's were “rude” to them and refused them service. The Moutons then described how two employees approached them in a “military-like phalanx before casting menacing glares at them” and repeatedly harassed and berated them. The Moutons alleged that they had no doubt that they would be physically attacked and that Mr. Mouton “braced for ․ battle” while Mrs. Mouton “sheltered and trembled” behind him. The Moutons further alleged that, through no fault of their own, they were under “intense pressure and threat of violence” and were “stripped of their dignity in front of other customers who live near their home[.]”

Mr. Mouton alleged that, as a result, he suffered a stress-induced stroke and that Mrs. Mouton, feeling violated in public, broke down in tears and continues to suffer numerous stress-induced symptoms. The Moutons alleged that their compromised health concerns have caused them to put on hold future retirement plans for establishing an international outreach ministry in the Asia-Pacific region. Although they alleged no physical contact, the Moutons set forth numerous acts by Lowe's’ employees, including intentional infliction of emotional distress, which they contended caused them to incur extensive physical and psychological damages and medical expenses for which they sought damages.

On August 22, 2023, Lowe's filed a request for a thirty-day extension of time to file an answer, which was granted by the trial court on August 25, 2023. On October 6, 2023, with no answer filed by Lowe's, the Moutons filed a notice of intent to obtain a default judgment.² On October 9, 2023, Lowe's filed an answer and exception of no cause of action. Thereafter, on October 27, 2023, the trial court signed a judgment granting the Moutons a default judgment against Lowe's in the amount of $335,000.00. Lowe's responded by filing a motion to vacate the default judgment and declare the entry of default null.³ On December 1, 2023, Lowe's filed another exception of no cause of action. The matters were set for hearing on February 21, 2024.

Following argument, the trial court vacated the default judgment and granted Lowe's’ exception of no cause of action. In accordance with its ruling, on March 12, 2024, the trial court signed an order vacating the October 27, 2024 default judgment and ordering the removal of the entry of default from the minutes of the court. On March 13, 2024, the trial court signed a judgment granting the exception of no cause of action and dismissing the Moutons’ claims with prejudice.

On April 8, 2024, the Moutons filed a notice of appeal of the March 12, 2024 order vacating the default judgment and the March 13, 2024 judgment maintaining the exception of no cause of action. On April 11, 2024, the Moutons filed a motion and order for a suspensive appeal of both judgments. On April 22, 2024, the trial court granted an order of appeal of the March 13, 2024 final judgment.

The Moutons urge the following assignments of error on appeal, contending that the trial court erred in:

(1) failing to provide effective translation services to Mrs. Mouton, which violated her due process rights and denied her meaningful participation in judicial proceedings;

(2) failing to accommodate or address Mr. Mouton's medical crisis during or after the February 21, 2024 hearing;

(3) failing to give proper weight to Lowe's’ admission of guilt, acknowledgement of liability, or offer to compensate for harm, invalidating their procedural defenses and exceptions;

(4) vacating the October 27, 2024 default judgment without requiring Lowe's to demonstrate good cause or excusable neglect;

(5) making prejudicial remarks, conduct, modifying official records, and denying access to public records, which violated the Moutons’ constitutional rights to due process, undermined judicial neutrality, and breached Louisiana's Public Records Law;

(6) failing to address Lowe's’ procedural violations, including withholding discovery, filing false statements, and failing to provide critical evidence, which deprived the Moutons of a fair opportunity to litigate their claims; and

(7) failing to recognize that Lowe's’ extreme and outrageous conduct, refusal to cease harmful actions, and discovery violations constituted intentional infliction of emotional distress.

DISCUSSION

At the outset, we note that the Moutons are representing themselves pro se in the proceedings before the trial court and this Court on appeal. In the interest of justice, we read pro se filings indulgently and attempt to construe briefs as though the assignments of error were properly raised. Wells in Interest of Wells v. Michael X., 2023-1201 (La. App. 1st Cir. 4/17/24), 2024 WL 1645378, *2 (unpublished), citing Brown v. Terrebonne Parish Sheriff's Office, 2017-1305 (La. App. 1st Cir. 4/13/18), 249 So. 3d 864, 869 n. 7, writ not considered subnom, Brown v. Larpenter, 2018-00964 (La. 10/8/18), 253 So. 3d 792.

However, as a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Stewart v. Livingston Parish School Board, 2007-1881 (La. App. 1st Cir. 5/2/08), 991 So. 2d 469, 474. Pursuant to article 5, § 10 of the Louisiana Constitution, courts of appeal have broad supervisory jurisdiction; however, even with such broad power, this court will not act on the merits of a claim not yet acted upon by the lower tribunal, unless the interest of justice requires otherwise. Burniac v. Costner, 2018-1709 (La. App. 1st Cir. 5/31/19), 277 So. 3d 1204, 1210; see also Uniform Rules – Courts of Appeal, Rule 1-3.

Thus, to the extent that the Moutons’ third, fifth, sixth, and seventh assignments of error concern the merits or weight of the evidence, alleged discovery violations and improper conduct by Lowe's and the trial court in this matter, these issues were not considered or ruled upon by the trial court and thus, are not disposed of in the judgments before us on appeal. See Dodson v. Brame, 2021-1200 (La. App. 1st Cir. 7/11/22), 2022 WL 2663247, *7 (unpublished), citing Stewart, 991 So. 2d at 474. Therefore, we decline to review same on appeal.

Order Vacating Default Judgment (Assignment of Error Number Four)

We commence our review with the Moutons challenge of the trial court's March 12, 2024 order vacating its October 27, 2023 judgment of default. A judgment vacating a default judgment when other issues in the case remain pending is interlocutory, rather than a final appealable judgment. Richardson v. Tessier, 2007-0374 (La. App. 1st Cir. 11/02/07), 977 So. 2d 55, 56 However, we review the March 12, 2024 interlocutory judgment vacating the default judgment as part of the appeal of the March 13, 2024 final judgment granting the exception of no cause of action. Pontchartrain Natural Gas System v. Texas Brine Company, LLC, 2018-1249 (La. App. 1st Cir. 12/30/20), 317 So. 3d 715, 742, writ denied, 2021-00382 (La. 6/8/21), 317 So. 3d 323, and writ denied, 2021-00386 (La. 6/8/21), 317 So. 3d 323 (noting that, generally, when an unrestricted appeal is taken from a final judgment determinative of the merits, the appellant is entitled to seek review of all adverse and prejudicial interlocutory judgments, in addition to the review of the final judgment).

Louisiana Code of Civil Procedure article 1002 provides that a defendant may file his answer or other pleading at any time prior to the signing of a default judgment against him. A default judgment formally granted after an answer is filed constitutes an absolute nullity. La. C.C.P. art. 2002. It is well settled that a defendant may file his answer at any time prior to confirmation of default against him, and that any default judgment granted after an answer has been filed is an absolute nullity. Price v. Kids World, 2008-1815 (La. App. 1st Cir. 3/27/09), 9 So. 3d 992, 995 n.1, writ not considered, 2009-1340 (La. 9/25/09), 18 So. 3d 94. An absolutely null judgment may be attacked collaterally, at any time, by rule or by any other method. Rivet v. Regions Bank, 2002-1813 (La. 2/25/03), 83 8 So. 2d 1290, 1293, citing Hebert v. Hebert, 96-2155 (La. App. 1st Cir. 9/19/97), 700 So. 2d 958, 959.

As set forth above, before Lowe's filed its answer on October 9, 2023, the Moutons e-filed a notice of intent to obtain a default judgment on October 6, 2023, and then filed the notice of intent to obtain a default judgment by regular filing on October 9, 2023. However, because Lowe's ultimately filed its answer before the trial court signed the default judgment on October 27, 2023, the default judgment was null as a matter of law. Thus, we find the trial court did not err in vacating the judgment of default. See Wells v. Hannah, 2017-1399 (La. App. 1st Cir. 12/13/18), 2018 WL 65 82991, *4 (unpublished).

This assignment of error lacks merit.

Failure to Provide Effective Translation Services and to Accommodate Mr. Mouton's Medical Crisis (Assignments of Error Numbers One and Two)

In these assignments of error, the Moutons contend that during the February 21, 2024 hearing, the trial court failed to provide effective translation services to Mrs. Mouton, which violated her due process rights and denied her meaningful participation in judicial proceedings. The Moutons further contend that the trial court failed to accommodate or address Mr. Mouton's medical crisis that occurred during or after the February 21, 2024 hearing.

The record shows that Dennis Castro served as a Tagalog ⁴ interpreter at the hearing via Zoom and was present in the courtroom via a remote screen. The trial court asked Mrs. Mouton how comfortable she was with “understanding English” to which she replied that she understood basic English, but required assistance with legal jargon and “some inferences or some language[.]” A discussion concerning different methods of translation ensued during which the trial court asked Mrs. Mouton to inform the court when she did not understand what was being said. Mr. Mouton also indicated that he was usually able to tell when Mrs. Mouton is a bit unsure of the language. The Moutons did not lodge an objection to the proposed arrangements to utilize the interpreter's services.

Mr. Mouton then asked the trial court if he could approach the bench about a confidential matter concerning his personal medical status. He requested permission to sit down during the proceedings, which the trial court granted. Considering Mr. Mouton's health condition, the trial court discussed the option of continuing the matter, and asked Mr. Mouton if he would be in a better medical state at a future date if the matter was reassigned. The colloquy below followed:

MR. MOUTON: That is my hope, your Honor. My objective in being here today even though I could have passed is to defend my rights and I am very eager to do so.

THE COURT: Mr. LeBeau, -- and I'll ask you to do this yourself, Mr. Mouton, the request is for a continuance on this matter; is that correct?

MR. MOUTON: I am not requesting a continuance at this time.

THE COURT: You are not. So you wish to proceed forward?

MR. MOUTON: Yes, yes, your Honor.

To the extent that the Moutons contend the trial court erred in failing to address his medical condition, the record establishes that the trial court granted his request to sit during the hearing and further offered to accommodate his medical needs by continuing the hearing. Mr. Mouton clearly stated that he was not requesting a continuance and that he wished to go forward. Under these circumstances, we can find no error by the trial court.

Next, although the Moutons do not specifically challenge the qualifications of the interpreter, they contend on appeal that the translation services offered were inadequate, ineffective, and raise serious due process concerns. The Moutons claim that Mrs. Mouton was instructed to raise her hand if she did not understand what was said so Mr. Castro could then interpret for her. They further contend that the trial court erred in failing to provide additional communication equipment, such as earphones or cell phone audio links, so Mrs. Mouton could listen to Mr. Castro's continuous interpretation. The Moutons further contend that the trial court erred in relying on Mr. Mouton as an intermediary when he was not a certified interpreter and could not provide impartial or effective translation.

Louisiana Code of Civil Procedure article 192.2 provides, in pertinent part:⁵

A. If a non-English-speaking person who is a party or a witness in a proceeding before the court has requested that the court appoint an interpreter for the proceeding, a judge shall appoint an interpreter in accordance with the Code of Evidence and the Rules of the Louisiana Supreme Court.

Louisiana Code of Evidence article 604 provides that:

An interpreter is subject to the provisions of the Louisiana Code of Evidence and the Rules of the Louisiana Supreme Court relating to qualification as a court-appointed interpreter and the administration of an oath or affirmation that the interpreter will make a true translation or interpretation.

The record reveals that neither Mr. nor Mrs. Mouton made any objections in reference to concerns surrounding translation services offered at the hearing. Moreover, Mr. Mouton volunteered his unsolicited services to assist, stating, “Judge, I usually can tell when some term is used that she's going to be a little unsure of.” Given the absence of any indication by the Moutons at the hearing that the interpretation arrangements were not sufficient, we find no merit to this assignment of error.⁶

Peremptory Exception of No Cause of Action

To the extent that the Moutons attempt to challenge the trial court's grant of Lowe's’ exception of no cause of action through their assignments of error, in the interest of justice, we will construe their brief as though this assignment of error was properly raised. See Wells in Interest of Wells, 2024 WL 1645378 at *2.

The peremptory exception of no cause of action tests the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged. Allstate Vehicle and Property Insurance Company v. Andrus Restoration, LLC, 2019-1279 (La. App. 1st Cir. 9/21/20), 314 So. 3d 51, 55. In the context of the peremptory exception, a “cause of action” is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Paulsell v. State, Department of Transportation & Development, 2012-0396 (La. App. 1st Cir. 12/28/12), 112 So. 3d 856, 864, writ denied, 2013-0274 (La. 3/15/13), 109 So. 3d 386. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. Rather, the exception is triable solely on the face of the petition and any attached documents. Melancon v. Commonwealth Land Title Insurance Company, 2020-0196 (La. App. 1st Cir. 12/30/20), 318 So. 3d 171, 174.

For purposes of determining the issues raised by the exception of no cause of action, all well-pleaded facts in the petition must be accepted as true. CamSoft Data Systems, Inc. v. Southern Electronics Supply, Inc., 2015-1260 (La. App. 1st Cir. 9/23/15), 182 So. 3d 1009, 1015. However, mere conclusions unsupported by facts are not sufficient to set forth a cause of action. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So. 2d 114, 118. The court's inquiry on an exception of no cause of action is limited to determining whether the law provides a remedy to anyone if the facts alleged in the petition are proved at trial. Midland Funding LLC v. Welch, 2022-0823 (La. App. 1st Cir. 2/24/23), 361 So. 3d 1022, 1027. A court exceeds this limited scope on an exception of no cause of action by reaching the merits. Midland Funding LLC, 361 So. 3d at 1027.

Because the exception of no cause of action raises a question of law and the trial court's decision is based solely on the sufficiency of the petition, review of the trial court's ruling on an exception of no cause of action is de novo. Scheffler v. Adams & Reese, LLP, 2006-1774 (La. 2/22/07), 950 So. 2d 641, 647. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiff's behalf, the petition states any valid cause of action for relief. Jackson v. Board of Supervisors for Southern University & Agricultural and Mechanical College, 2021-0241 (La. App. 1st Cir. 3/11/22), 372 So. 3d 336, 347.

From our review of the allegations set forth in the petition, we discern that the Moutons are attempting to assert a cause of action for intentional infliction of emotional distress and assault.⁷ In order to recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Company, 585 So. 2d 1205, 1209 (La. 1991). The conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. White, 585 So. 2d at 1209. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. White, 585 So. 2d at 1209.

The parameters for imposing liability for emotional distress were aptly set forth by the Supreme Court in White, as follows:

The distress suffered must be such that no reasonable person could be expected to endure it. Liability arises only where the mental suffering or anguish is extreme.

The defendant's knowledge that plaintiff is particularly susceptible to emotional distress is a factor to be considered. But the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough. It follows that unless the actor has knowledge of the other's particular susceptibility to emotional distress, the actor's conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.

Liability can arise only where the actor desires to inflict severe emotional distress or where he knows that such distress is certain or substantially certain to result from his conduct. The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry, or the like.

White, 585 So. 2d at 1210 (citations omitted).

In their “Petition for Tort,” the Moutons alleged that “Ms. Anthony was rude and short[,]” “sneered at them[,]” “refused them service[,]” and “rebuffed” another employee's efforts to serve them without quoting any statements made by Ms. Anthony. The Moutons alleged that Ms. Anthony had a history of exhibiting disrespectful, harassing, and discriminating behavior towards them following their complaints to Lowe's in 2022 about alarming employee behavior, obscene language, and poor customer service at that location.

The Moutons further alleged that employees, Mr. DeBenedetto and Shane, approached them in “an aggressive military-like phalanx before casting menacing glares at them.” And, that Mr. DeBenedetto “intensified his assault by yelling over and through Mr. Mouton's numerous (at least 4) pleas to stop the abuse.” The Moutons alleged that they “had no doubt they would be physically attacked” and that Mr. Mouton “braced for battle” while Mrs. Mouton “sheltered and trembled” behind him. They alleged they were “under intense pressure and threat of violence” and were “stripped of their dignity” in front of other customers. The Moutons alleged that Mr. DeBenedetto indicated that he knew them from a complaint they had lodged against him in 2016 when he was an employee of Sears, and that he held a “grudge” against them. The Moutons alleged that Mr. DeBenedetto then claimed he would not allow police involvement on “his premises” and made “provocative motions with his face and eyes while craning his neck and leaning close to Mrs. Mouton[.]” The Moutons contended that when Mr. Mouton threatened to appeal to the Lowe's CEO, Mr. DeBenedetto stated, “I'm not worried about losing my job, I'm not going ANYWHERE.” The Moutons alleged that when they asked Mr. DeBenedetto why he would do such a thing, he responded “I KNOW you!” presumably referring to an interaction that occurred years prior when the Moutons lodged an ethics complaint against Mr. DeBenedetto when he was employed by Sears. They alleged that, at this point, Mr. DeBenedetto “made provocative motions with his face and eyes” and Mr. Mouton became stiff and was stricken with a stress-induced headache. The Moutons left the store feeling “shaken, extremely upset, and embarrassed.” Mrs. Mouton expressed the sense of having been violated in public and broke down in tears, while Mr. Mouton developed tinnitus and other neurological symptoms compelling him to seek medical help.

Similar to the instant case, in Hanhart v. Louisiana CVS Pharmacy LLC, 2024-0479 (La. App. 4th Cir. 9/20/24), 399 So. 3d 785, plaintiff, who was a customer of CVS pharmacy, filed a petition for damages complaining that her inability to obtain her diabetes medication in a timely manner caused her to suffer extreme emotional distress accompanied by actual physical suffering. Hanhart, 399 So. 3d at 788. Six days after her medication was ordered, Hanhart arrived at the pharmacy after several unsuccessful attempts to speak to a pharmacy employee by phone. Hanhart, whose tone was aggravated, irritated, and frustrated, alleged that an employee rolled her eyes at her and expressed physical and audible derision to her. Hanhart warned the employee not to “cop an attitude” with her, at which point the employee left the register and refused to assist her. Hanhart, 399 So. 3d at 788. Hanhart and the employee engaged in a heated exchange and the employee made an offensive hand gesture toward her. Hanhart claimed that no one else in the pharmacy assisted her even though she informed them that she needed her medication by the next day and that her blood sugar could fluctuate without it. Hanhart, 399 So. 3d at 788. Hanhart alleged that she suffered extreme anxiety and nervousness the rest of the evening worrying whether she would be able to obtain her medication for her injection due the next day. The next day the online status of her medication was that it was on hold, which caused her more distress. Hanhart alleged that after another sleepless night of worry and distress, she was able to fill the medication at a Walgreens pharmacy. In addition to the emotional distress the incident caused, Hanhart alleged that she suffered physical pain and suffering, including headaches, nausea, and sleeplessness. She further alleged CVS knew of her medical history and should have been aware that she experienced mood and anxiety issues. Hanhart, 399 So. 3d at 788. On review of the trial court's denial of CVS's exception of no cause of action, the appellate court found that Hanhart's customer service issue may have involved inconsiderate and discourteous conduct, but that individuals must be expected to be hardened to a certain amount of occasional acts of rough language and inconsiderate and unkind behavior. The court further held that not every verbal encounter may be converted into a tort. Hanhart, 399 So. 3d at 790, quoting White, 585 So. 2d at 1209. The appellate court concluded that the trial court erred in denying the exception of no cause of action finding that Hanhart failed to allege sufficient facts to indicate that CVS desired to inflict emotional distress or that CVS knew or should have known that it would be substantially certain that Hanhart would experience severe emotional distress from its employee's conduct. Hanhart, 399 So. 3d at 790.

In Morris v. Dillard Department Stores, Inc., 277 F.3d 743, 747 (5th Cir. 2001), a customer of Dillard's department store who was suspected to be a shoplifter was followed through the store and into the parking lot by an undercover police officer who then wrote down her license plate number. When the suspected customer reentered the store and confronted the officer, she was arrested, handcuffed, and led through the store to the security office where she was held and searched by a female police officer who was called to the scene. Morris, 277 F.3d at 746-747. The customer was subsequently transported to the police station where she was “booked.” The customer filed suit in state court asserting various claims against Dillard's, its insurer, and the officer, which was ultimately removed to federal court. Morris, 277 F.3d at 747. On review of a motion for summary judgment, the federal appellate court found that the customer's claims for intentional infliction of emotional abuse failed because the conduct complained of did not rise to the level of extreme and outrageous required to support the claim. Morris, 277 F.3d at 757.

In White, after plaintiff was cursed at and berated by a supervisor at work, she got so upset she began to experience pain in her chest, pounding in her head, and had difficulty breathing. White, 585 So. 2d at 1207. Plaintiff, who arrived at the hospital experiencing chest pains, shortness of breath and cold, clammy hands, was admitted for suspected heart attack. She spent two days in the coronary care unit and then one day in a regular room. Thereafter, plaintiff would become upset when thinking and dreaming about the incident and occasionally took prescription medication. White, 585 So. 2d at 1207. She ultimately filed suit against her employer and a jury awarded her $60,000.00 for intentional infliction of emotional distress damages. White, 585 So. 2d at 1207. On review of a judgment rendered in accordance with a jury verdict, the Supreme Court reversed the award finding that the one-minute outburst of profanity and vile language directed to plaintiff was not so extreme and outrageous as to go beyond all possible bounds of decency and be regarded as utterly intolerable in a civilized community. White, 585 So. 2d at 1210-1211. The Court noted that although the conduct was crude, rough, and uncalled for, it was not tortious and did not give rise to a cause of action for damages under general tort law. White, 585 So. 2d at 1211.

On review of the instant matter, applying the prevailing jurisprudence, we find that although the Moutons allege that the conduct of the Lowe's’ employees was rude, humiliating, insulting, and threatening, these allegations are insufficient to establish that such conduct was extreme and outrageous, which is required to state a cause of action. Moreover, the Moutons did not allege material facts necessary to establish that the emotional distress suffered by Mrs. Mouton was severe and that the Lowe's’ employees desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from their conduct.

In the civil context, assault is generally defined as the threat of a battery. Bennett v. Ragon, 2004-0706 (La. App. 1st Cir. 3/24/05), 907 So. 2d 116, 120-121. Battery is defined as “[a] harmful or offensive contact with a person, resulting from an act intended to cause him to suffer such a contact.” Bennett, 907 So. 2d at 121, quoting Caudle v. Betts, 512 So. 2d 389, 391 (La. 1987). In this context, intent has been held to mean that the actor either consciously desires the physical result of his act or knows that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Bazley v. Tortorich, 397 So. 2d 475, 481 (La. 1981). The intention need not be malicious nor need it be an intention to inflict actual damage. Guste v. Lirette, 2017-1248 (La. App. 1st Cir. 6/4/18), 251 So. 3d 1126, 1130. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other's consent. Caudle, 512 So. 2d at 391. Generally, the apprehension must be that of a normal and reasonable person, unless the defendant has knowledge of a particular weakness or vulnerability in the plaintiff. 12 William E. Crawford, Louisiana Civil Law Treatise; Tort Law § 12:7 (2d ed. 2009).

Our review of the allegations in the petition further lead us to conclude that the petition fails to allege sufficient facts to establish that the defendants herein intended to inflict a harmful or offensive contact with the Moutons or otherwise had knowledge of a particular weakness or vulnerability of the Moutons. We note that the Moutons do not allege any physical contact by the Lowe's’ employees or an attempt by the Lowe's’ employees to physically contact the Moutons. As such, we find the allegations are insufficient to assert a cause of action for assault.

Thus, finding that the allegations set forth in the Moutons’ petition are insufficient to assert a cause of action, we affirm the March 13, 2024 judgment of the trial court granting Lowe's exception of no cause of action. However, to the extent that the judgment dismisses their claims with prejudice, we disagree.

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934. If the grounds of the objection raised through the exception cannot be so removed, the action shall be dismissed. La. C.C.P. art. 934. The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Harris v. Breaud, 2017-0421 (La. App. 1st Cir. 2/27/18), 243 So. 3d 572, 581.

On the record before us it appears that the Moutons have not attempted to amend their original petition. We thus conclude that while the trial court correctly granted Lowe's’ exception of no cause of action, the trial court abused its discretion in not allowing the Moutons an opportunity to amend their original petition to attempt to state a cause of action for intentional infliction of emotional distress and assault against Lowe's prior to the dismissal of their claims. Thus, we find the Moutons should be allowed an opportunity to amend their petition to allege material facts necessary to establish that the conduct of the Lowe's’ employees was extreme and outrageous, the emotional distress suffered by Mrs. Mouton was severe, and that the Lowe's’ employees desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from their conduct. We also allow the Moutons an opportunity to amend their allegations to assert a cause of action for assault. Pursuant to La. C.C.P. art. 934, we remand this matter to the trial court to permit the Moutons to amend their petition, if they can, to set forth the necessary allegations so as to state a cause of action.

Accordingly, the portion of the March 13, 2024 judgment granting Lowe's exception of no cause of action is affirmed, the portion of the judgment dismissing the Mouton's suit with prejudice is reversed, and this matter is remanded to allow the Moutons an opportunity to amend their petition in accordance with La. C.C.P. art. 934. See Didier v. Simmons, 2019-1100 (La. App. 1st Cir. 5/11/20), 312 So. 3d 279, 283-284, writ denied, 2020-00700 (La. 9/29/20), 301 So. 3d 1162.

ANSWER TO APPEAL

Lowe's filed an answer to this appeal seeking damages against the Moutons and other equitable relief, pursuant to La. C.C.P. art. 2164, contending that the Moutons’ filing of writs and pleadings in the trial court after their order for appeal was granted was redundant, harassing, and frivolous. Lowe's further contends that the Moutons’ appeal in this matter is also frivolous urging that the Moutons cannot argue a legitimate basis as grounds to overturn the judgment. Considering our ruling herein, we deny the answer to appeal.

CONCLUSION

For the above and foregoing reasons, the March 12, 2024 order of the trial court vacating the October 27, 2023 default judgment is affirmed.

The March 13, 2024 judgment of the trial court is affirmed insofar as it sustained Lowe's peremptory exception of no cause of action. The portion of the March 13, 2024 judgment dismissing the Moutons’ suit with prejudice is reversed. This matter is remanded to the trial court with instructions to issue an order allowing the Moutons an appropriate delay to amend their petition to set forth material factual allegations necessary to support a cause of action for intentional infliction of emotional distress and assault.

The answer to appeal is denied.

Costs of this appeal are assessed one-half to the defendant/appellee, Lowe's Home Improvement Center, LLC D/B/A Lowe's Home Improvement and one-half to the plaintiffs, Gregory P. Mouton and Marivette V. Mouton.

MARCH 12, 2024 ORDER AFFIRMED; MARCH 13, 2024 JUDGMENT AFFIRMED IN PART, REVERSED IN PART; REMANDED WITH INSTRUCTIONS; ANSWER TO APPEAL DENIED.

I agree with the majority's affirmance in part and reversal in part of the March 30, 2024 judgment, as well as its remand order to the trial court. I disagree, however, with the majority's denial of Lowe's’ answer to the appeal and with the majority's assessment of appeal costs.

I would grant Lowe's’ answer to the appeal, and, as allowed by La. C.C.P. art. 2164, would sanction the Moutons for repetitive frivolous filings. I would also assess all costs of the appeal to the Moutons.

FOOTNOTES

1.   The pro se petition is not signed by Mrs. Mouton as is required by La. C.C.P. art. 863(A). However, because Lowe's failed to file a motion to strike her claims from the petition or otherwise assert prejudice, we do not address the effect of the omitted signature. See Zanders v. Davis, 2019-1057 (La. App. 1stCir. 2/21/20), 298 So. 3d 739, 744.Moreover, the four individuals named as defendants in the petition for damages were allegedly acting in the course and scope of their employment with Lowe's at the time of the incident herein. Service of the petition, however, was only requested on Lowe's Home Centers, LLC.

2.   The notice was e-filed on October 6, 2023, followed by its physical filing on October 9, 2023, at 9:07 a.m.

3.   The Moutons subsequently filed a “Motion to Confirm Default Judgment as Final Judgment,” which was met with a motion to strike and for sanctions and costs by Lowes. Both motions were denied by the trial court.

4.   Tagalog is a language spoken in the Philippines.

5.   Louisiana Acts 2024, No. 32 §§ 1 and 3, effective August 1, 2024, amended and reenacted La. C.C.P. art. 192.2 to provide that an interpreter be appointed in accordance with the Louisiana Code of Evidence and the Rules of the Louisiana Supreme Court and La. C.E. art. 604 to “make clear” that regulation and use of interpreters in court proceedings are set forth in the Rules of the Louisiana Supreme Court and to “clarify” that Article 604 applies to court-appointed interpreters as to distinguish from those retained by a party. See La. C.E. art. 604, Comments -- 2024. Although the act was effective after the February 21, 2024 hearing, the amendments therein to Articles 192.2 and 604 are not substantive. Thus, in the absence of legislative expression, these amendments are applied both prospectively and retroactively. See Doe v. Board of Supervisors of Louisiana State University and A & M College, 2023-0246 (La. App. 1st Cir. 12/14/23), 380 So. 3d 91, 97-98.Although not applicable herein, La. Acts 2024, No. 32 § 3 also enacted La. C.E. art. 604.1, “Qualifications of interpreters; interpretations,” which provides as follows:A. If a party objects to the qualifications of any court-appointed interpreter, the party or the party's attorney shall have the right to conduct a voir dire examination of the interpreter.B. If a qualified interpreter is not available for a court proceeding, upon the consent of all parties, the court may appoint a person who the court and parties agree will be able to accurately interpret the proceeding in a fair and impartial manner. Before giving consent, the party or the party's attorney shall have the right to conduct a voir dire examination of the interpreter.C. Any party may object to the interpretation or translation of an interpreter.D. In all court proceedings in a court of record, interpreted communications with the court shall be recorded in an audio or audiovisual format. The recordings shall be retained by the court.E. Nothing in this Article prevents any party from having its own interpreter at any proceeding for the party's own purposes.

6.   Because we will review the claims set forth in the Moutons’ petition de novo to determine if the Moutons have asserted a cause of action, any deficiency concerning interpretation services as relates to this hearing is not fatal to the Moutons’ claims.

7.   The Moutons list a variety of alleged acts or omissions committed by Lowe's’ employees for which there is no cause of action. Moreover, we note that because Louisiana retains fact pleading, mere conclusory statements in the petition, without supporting facts, are insufficient to set forth a cause of action. Denham Homes, L.L.C. v. Teche Federal Bank, 2014-1576 (La. App. 1st Cir. 9/18/15), 182 So. 3d 108, 118.

MILLER, J.

GREENE, J. agrees in part and dissents in part with reasons