TOUCHET v. MCGEHEE (2025)

Plaintiffs filed suit alleging defamation and intentional infliction of emotional distress. The trial court sustained Defendant's peremptory exception raising the objection of no cause of action and ordered Plaintiffs to file an amended petition to state a cause of action within thirty days of the judgment. When Plaintiffs failed to file an amended petition, Defendant filed a motion to dismiss and obtained a judgment of dismissal of Plaintiffs’ claims. This appeal followed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Charlotte C. McDaniel—a licensed attorney representing herself pro se and representing the only other plaintiff, Christian Kyle Touchet, who is Ms. McDaniel's fiancée—filed a lawsuit on May 26, 2023 alleging defamation and intentional infliction of emotional distress. Plaintiffs claimed that Defendants—Loretta Verbois McGehee and Rodney McGehee, who are Ms. McDaniel's ex-mother-in law and ex-father-in-law—made defamatory statements about Plaintiffs to Ms. McDaniel's nineteen-year-old daughter, Chloe, and one of her friends, C.C., a minor. Plaintiffs alleged that Defendants—who are Chloe's paternal grandparents—stated to Chloe and C.C. that while Chloe lived with her mother, Ms. McDaniel drugged Chloe as a minor. Plaintiffs further alleged that Defendants stated to Chloe and C.C. that Ms. McDaniel had given alcohol to Chloe as a minor “with the purpose of manipulating [Chloe] to believe that she was not groomed by an uncle[,] but was groomed by [Mr.] Touchet” as a minor. Plaintiffs claimed these allegedly defamatory statements were made by Defendants with the intent to “influence a dismissal of pending litigation ․ regarding the molestation of [Chloe,] [with Defendants] attempting to persuade [Chloe] to dismiss her cause of action for damages” in that litigation.² Ms. McDaniel also specifically claimed that Defendants’ alleged defamatory statements caused her to suffer severe emotional distress.

On June 23, 2024, Defendants filed a dilatory exception raising the objection of vagueness or ambiguity of the petition.³ The trial court set Defendants’ exception of vagueness for hearing on August 4, 2023. Plaintiffs were served with Defendants’ exception of vagueness by the sheriff on July 17, 2023. On July 19, 2023, Defendants filed a motion to continue the hearing on their exception of vagueness. In an order signed on July 24, 2023, the trial court granted a continuance of that hearing to August 18, 2023.

On June 27, 2023, Plaintiffs filed a motion for protective order, sanctions, attorney's fees, and costs. Plaintiffs argued that Defendants had waived their exception of vagueness as it was “not timely plead [sic] and never properly filed with the [c]ourt or noticed to opposing counsel”, but was instead served on Ms. McDaniel, as counsel for Plaintiffs, “by Sheriff's Service only” on July 17, 2023. Plaintiffs further averred that Ms. McDaniel had filed a request for a default judgment ⁴ four days prior on July 13, 2023 and paid the filing fees, when no apparent answer to Plaintiffs’ lawsuit was filed into the trial court record.⁵ Plaintiffs additionally claimed that they sought to protect themselves from “attempts of Defendants to have [ex parte] communications with the [c]ourt and to prevent pleadings filed for the improper delay of the progression of this case.” The trial court also set Plaintiffs’ motion for protective order for hearing on August 18, 2023.

At the August 18, 2023 hearing on Defendants’ exception of vagueness and Plaintiffs’ motion for protective order, the trial court dismissed Plaintiffs’ motion for protective order as moot; sustained Defendants’ exception of vagueness; and gave Plaintiffs the opportunity to amend their petition.

On August 31, 2023, Defendants filed a motion to disqualify Ms. McDaniel as counsel for Mr. Touchet, arguing that she was a material fact witness such that Rule 3.7 of the Louisiana Rules of Professional Conduct (which mandates that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness), as well as Rule 1.7 (which mandates that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest), would apply to prohibit her representation of Mr. Touchet.⁶ Ms. McDaniel filed an opposition to Defendants’ motion to disqualify on behalf of Mr. Touchet.

On October 2, 2023, Plaintiffs filed their first supplemental and amending petition for damages and a motion for dismissal of Rodney McGehee as a defendant.⁷ Plaintiffs’ first supplemental and amending petition contained a lengthy quoted excerpt from an apparent affidavit executed by C.C. regarding the allegedly defamatory statements at issue herein.⁸ In a judgment signed on October 12, 2023, the trial court dismissed Plaintiffs’ claims against Rodney McGehee.

On October 25, 2023, the remaining defendant, Loretta Verbois McGehee, answered Plaintiffs’ first supplemental and amending petition for damages, asserting general denials.

Following a February 23, 2024 hearing on the motion to disqualify Ms. McDaniel as counsel for Mr. Touchet, the trial court granted the motion.⁹ The trial court signed a judgment on March 19, 2024 that disqualified Ms. McDaniel from representing herself pro se and from representing Mr. Touchet as counsel in the instant matter.

Ms. McDaniel filed a pro se supervisory writ application with this court, seeking expedited consideration and/or a stay of the trial court's March 19, 2024 judgment granting the motion to disqualify. This court declined to consider the writ application due to her failure to comply with the Uniform Rules of Louisiana Courts of Appeal and the Louisiana Code of Civil Procedure.¹⁰ Touchet v. McGehee, 2024-0484 (La. App. 1 Cir. 8/12/24), 2024 WL 3755558 (unpublished writ action).

On April 8, 2024, the trial court signed an order enrolling Seth Dornier as counsel of record for Plaintiffs.¹¹

On May 10, 2024, Defendant filed a peremptory exception raising the objection of no cause of action as to Plaintiffs’ first supplemental and amending petition for damages.¹² Defendant argued that Plaintiffs had not alleged facts that, if taken as true, were sufficient to establish a cause of action for defamation nor for intentional infliction of emotional distress. Counsel for Defendant certified that service of the exception of no cause of action had been effectuated by first class mail to all counsel of record. The trial court signed an order setting Defendant's exception of no cause of action for hearing on July 23, 2024.

On July 15, 2024, counsel for Plaintiffs filed an opposition to Defendant's exception of no cause of action.

At the July 23, 2024 hearing on Defendant's exception of no cause of action, counsel for Plaintiffs failed to appear.¹³ At the hearing, the trial court questioned defense counsel as follows:

The Court: Anybody here for the plaintiffs?

[Defense Counsel:] No, your honor. Throughout this entire proceeding, I have not been able to get in contact with [Mr. Dornier]. He hasn't answered any of my emails or responded in any way.

The Court: Okay. We'll check to see if we have service. I'm going to finish calling the docket[,] and we'll have a status conference in the back.

[Defense Counsel:] Your honor, he did file an opposition memorandum.

The Court: Oh, he did? Okay. All right.

After a status conference with the trial court, defense counsel elected to submit his argument on Defendant's exception of no cause of action on the briefs.

On July 30, 2024, the trial court signed a judgment sustaining Defendant's exception of no cause of action, in pertinent part, as follows:

Plaintiffs filed a memorandum in opposition to the [D]efendant's exception on July 15, 2024; however, neither the [P]laintiffs nor their attorney appeared in [c]ourt for the hearing. Counsel for the [D]efendant agreed to submit the matter to the [c]ourt on briefs. Having considered the [D]efendant's [e]xception of [n]o [c]ause of [a]ction, the memoranda submitted by both parties, and the law[:]

IT IS ORDERED, ADJUDGED, AND DECREED that the [D]efendant's [e]xception of [n]o [c]ause of [a]ction is hereby granted.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the [P]laintiffs shall file any amendment to the petition seeking to state a cause of action with thirty (30) days of the date of this judgment.

JUDGMENT READ, RENDERED[,] AND SIGNED this 30th day of July, 2024.

The Clerk of Court issued notice of the July 30, 2024 judgment to all counsel of record on July 31, 2024.

On August 30, 2024, Defendant filed a motion to dismiss pursuant to La. C.C.P. art. 963. Defendant alleged that Plaintiffs had not filed an amended petition to state a cause of action within thirty days of the July 30, 2024 judgment as ordered by the trial court, the deadline of which was August 29, 2024. See La. C.C.P. art. 5059; La. R.S. 1:55; La. Dist. Court Rules-Rule 1.5. Defendant sought an ex parte order to dismiss Plaintiffs’ claims against Defendant pursuant to La. C.C.P. art. 963 on the basis that the record demonstrated on its face that Plaintiffs did not timely file an amended petition by the deadline ordered by the trial court nor prior to the time Defendant filed the instant motion to dismiss. Accordingly, Defendant argued that the trial court had discretion to grant the order ex parte and without hearing the adverse party. La. C.C.P. art. 963(A).

Then on September 3, 2024, Plaintiffs filed a pro se second supplemental and amended petition for damages. Notably, Plaintiffs alleged: “Defendant and[/]or her attorney have intentionally caused a no cause of action to be filed where no party appeared as Plaintiffs had enrolled an attorney, Seth Dornier[,] to appear during the pendency of the [w]rit application wherein a stay was requested, however, [Defendant] or her attorney instead sought dismissal of the entire case while a writ was pending[.]”

On September 10, 2024, the trial court signed a judgment of dismissal, in pertinent part, as follows:

This matter came before the court for hearing on the 23rd day of July 2024, pursuant to Defendant[’s] ․ [e]xception of [n]o [c]ause of [a]ction to Plaintiffs[’] ․ [f]irst [s]upplemental and [a]mended [p]etition for [d]amages. Robert N. Aguiluz was present in [c]ourt on behalf of [Defendant]. No personal appearance was made at the hearing by or on behalf of [Plaintiffs], but counsel for [Plaintiffs] filed an opposition to the exception of no cause of action on their behalf. After considering the exception on the memoranda submitted by both counsels and on the law, the [c]ourt sustained [Defendant's] exception and signed a judgment on July 30, 2024, ordering [Plaintiffs] to file any amendment to the petition seeking to state a cause of action within thirty days of the date the judgment sustaining the exception was signed. Neither [Plaintiff] filed an amendment by the end of the thirtieth day, which was August 29, 2024. Accordingly, pursuant to Louisiana Code of Civil Procedure article 934:

IT IS ORDERED, ADJUDGED AND DECREED that judgment is rendered in favor of Loretta McGehee and against Christian Kyle Touchet and Charlotte C. McDaniel, dismissing their claim for damages.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that this judgment is a final judgment

The Clerk of Court issued notice of the September 10, 2024 judgment to all counsel of record on September 19, 2024.

On September 13, 2024, Ms. McDaniel filed a second supervisory writ application with this court, again seeking expedited consideration and/or a stay of the trial court's March 19, 2024 judgment granting the motion to disqualify. This court declined to consider the writ application as untimely filed.¹⁴ Touchet v. McGehee, 2024-0859 (La. App. 1 Cir. 11/18/24), 2024 WL 4815489 (unpublished writ action).

Ms. McDaniel filed a pro se motion for devolutive appeal on her own behalf on September 13, 2024.¹⁵ The trial court signed an order of appeal on September 19, 2024. The notice of appeal, transmitted by the Clerk of Court to the parties on October 18, 2023, set forth that “Plaintiff”, Ms. McDaniel, was granted an appeal from the September 10, 2024 judgment.

ASSIGNMENTS OF ERROR

Ms. McDaniel assigns the following as error on appeal:

[1.] The [trial c]ourt erred in granting the exception of no cause of action for defamation on the briefs.

[2.] The [trial c]ourt erred in disqualifying and [o]rdering that Ms. McDaniel could not act as [c]ounsel for herself.

[3.] The [trial c]ourt erred in not serving all counsel of record with notice of [judgment] granting the exception of no cause of action.

[4.] The [trial c]ourt erred in granting a final [ex parte] judgment of dismissal without notice to Ms. McDaniel and without a contradictory hearing and miscalculated that time for which the Plaintiff could file an amendment; and did not consider that prior to the dismissal, Plaintiff had served [a second amending and supplemental petition] on opposing [c]ounsel by August 29, 2024[,] and the Clerk of Court filed the supplemental petition on September 4, 2024, prior to the September 10, 2024 signing of the final dismissal[.]

APPELLATE JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue, and we are obligated to recognize any lack of jurisdiction if it exists. Quality Environmental Processes, Inc. v. Energy Development Corp., 2016-0171 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045, 1052-53. The Louisiana Code of Civil Procedure defines three types of judgments: an interlocutory judgment, which determines a preliminary matter in the course of an action, but does not determine the merits (see La. C.C.P. art. 1841); a final judgment, which determines the merits of the case in whole or in part (see La. C.C.P. art. 1841); and a partial final judgment, which disposes of some, but not all, of the issues on the merits, and in some instances requires a designation of finality by the trial court for the purpose of an immediate appeal (see La. C.C.P. art. 1915). Different rules govern the appealability of these three types of judgments. See La. C.C.P. arts. 2083(A), 2083(C), and 1915(B). Our appellate jurisdiction extends to “final judgments.”¹⁶ See La. C.C.P. arts. 1841, 2081, and 2083(A); Quality Environmental Processes, 218 So.3d at 1053.

Not for the first time in this court, Ms. McDaniel has incorrectly listed the date of the judgment she seeks to appeal in her motion for appeal. See, e.g., McGehee v. McGehee, 2021-0440 (La. App. 1 Cir. 12/22/21), 340 So.3d 936, 939, writ denied, 2022-00155 (La. 3/15/22), 334 So.3d 397. In her motion for appeal in the instant matter, Ms. McDaniel stated that the trial court signed a judgment in favor of Defendant granting the exception of no cause of action on August 30, 2024. Ms. McDaniel prayed that the trial court “grant Plaintiff a devolutive appeal of the Judgment signed August 30, 2024[.]” Ms. McDaniel repeats this assertion in the jurisdictional statement of her appellant brief. However, Ms. McDaniel is incorrect—the judgment sustaining Defendant's exception of no cause of action was signed on July 30, 2024, not August 30, 2024.

Furthermore, a ruling, such as the trial court's July 30, 2024 judgment, that sustains a peremptory exception and allows a period of time for an amendment of the petition is not a final judgment or an appealable interlocutory judgment. See Atchafalaya Basinkeeper v. Bayou Bridge Pipeline, LLC, 2018-0417 (La. App. 1 Cir. 2/22/19), 272 So.3d 567, 570. Therefore, Ms. McDaniel may not appeal the July 30, 2024 judgment sustaining Defendant's exception of no cause of action.

When a matter involves multiple judgments, and an appellant asserts that she inadvertently specified the wrong judgment in her motion for appeal, the reviewing court must consider the following factors to determine the appellant's intent in seeking an appeal: (1) the appellant's assertions; (2) whether the parties briefed the issues on the merits of the final judgment; and (3) the language of the order of the appeal. See Dobyns v. University of Louisiana System, 2018-0488 (La. App. 1 Cir. 6/12/19), 2019 WL 2462496, *4 (unpublished). While Ms. McDaniel has not recognized nor asserted that she inadvertently specified the wrong judgment in her motion for appeal, we note it is well-settled that “[a]ppeals are favored in law and should be dismissed only for substantial causes.” General Motors Acceptance Corporation v. Deep South Pest Control, Inc., 173 So.2d 190, 191 (La. 1965). Accordingly, we examine the aforementioned factors to determine Ms. McDaniel's intent in seeking an appeal.

In her appellant brief, Ms. McDaniel argues that the “dismissal of this matter by the [trial] [c]ourt should be reversed and remanded.” Ms. McDaniel also assigned error to the trial court granting a “final ex-parte judgment of dismissal without notice to Ms. McDaniel and without a contradictory hearing[.]” Ms. McDaniel attached the trial court's September 10, 2024 judgment of dismissal to her appellant brief in accordance with the Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4(B)(1), which requires that a “copy of the judgment, order, or ruling complained of, and a copy of either the trial court's written reasons for judgment, transcribed oral reasons for judgment, or minute entry of the reasons, if given, shall be appended to the brief of the appellant.” Finally, while the order of appeal does not specify from which judgment an appeal is granted, the notice of appeal sets forth that “Plaintiff’ was granted an appeal from the September 10, 2024 judgment of dismissal. For these reasons, we find that Ms. McDaniel intended to appeal the September 10, 2024 judgment of dismissal. We will treat her appeal accordingly.

LAW AND DISCUSSION

Assignment of Error No. 2

We begin by examining Ms. McDaniel's second assignment of error. She argues that the trial court erred in disqualifying her and ordering that she could not serve as counsel for herself. A court's ruling on a motion to disqualify counsel is reviewable by application for a supervisory writ. Succession of Armand, 2019-751 (La. App. 3 Cir. 2/27/20), 297 So.3d 37, 40. As discussed supra, Ms. McDaniel filed two pro se supervisory writ applications with this court, seeking expedited consideration and/or a stay of the trial court's March 19, 2024 judgment granting the motion to disqualify her as counsel. This court declined to consider both writ applications. See Touchet, 2024 WL 3755558 at *1; Touchet, 2024 WL 4815489 at * 1. Ms. McDaniel now wishes this court to again review her disqualification as counsel. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to her, in addition to review of the final judgment appealed. Young v. City of Plaquemine, 2004-2305 (La. App. 1 Cir. 11/4/05), 927 So.2d 408, 411.

A motion to disqualify counsel requires the court to balance several important factors: (1) the right of a party to retain counsel of his choice; and (2) the substantial hardship which might result from disqualification as against the public perception of and the public trust in the judicial system. The disqualification of counsel must be decided on a case-by-case basis. Stevens v. St. Tammany Par. Gov't, 2019-1555 (La. App. 1 Cir. 4/8/21), 322 So.3d 1268, 1277, writ denied, 2021-00800 (La. 11/3/21), 326 So.3d 898. The burden of proving disqualification of an attorney rests on the party making the challenge. Stevens, 322 So.3d at 1277. The decision or refusal to disqualify an attorney is typically subject to review under the manifest error standard. See Stevens, 322 So.3d at 1277; Transamerica Life Insurance Co. v. Fuselier, 2021-52 (La. App. 5 Cir. 4/21/21), 2021 WL 1567648, *1 (unpublished).

As noted supra, the motion to disqualify Ms. McDaniel as counsel is not contained in the record on appeal, nor is the accompanying memorandum, the transcript of the February 23, 2024 hearing on the motion to disqualify Ms. McDaniel as counsel, or any reasons of the trial court for granting the motion (if any were given). These inadequacies of the record are imputable to Ms. McDaniel as the appellant. See Niemann, 92 So.3d at 1044. Without the motion, supporting memorandum, hearing transcript, and trial court's reasons, we are unable to review and determine whether Defendant met her burden of proving Ms. McDaniel's disqualification as counsel. Furthermore, without the motion and memorandum, hearing transcript, and trial court's reasons, there is nothing in the record for this court to review to determine whether the trial court manifestly erred in granting Defendant's motion to disqualify Ms. McDaniel as counsel. Accordingly, this assignment of error is without merit.

Assignment of Error No. 3

Next, we examine Ms. McDaniel's third assignment of error. Therein, she argues that the trial court erred in not serving all counsel of record with notice of judgment sustaining the exception of no cause of action.

After the trial court signed the March 19, 2024 judgment granting the motion to disqualify Ms. McDaniel as counsel for herself and as counsel for Mr. Touchet, Seth Dornier enrolled as counsel of record for Ms. McDaniel and Mr. Touchet. When Defendant filed an exception of no cause of action on May 10, 2024, Mr. Dornier was enrolled as counsel of record for Ms. McDaniel. On July 15, 2024, when Mr. Dornier filed an opposition to Defendant's exception of no cause of action on behalf of Ms. McDaniel and Mr. Touchet, he was Plaintiffs’ enrolled counsel of record. At the July 23, 2024 hearing on Defendant's exception of no cause of action, Mr. Dornier failed to appear, although he was Ms. McDaniel's enrolled attorney of record.¹⁷

Thereafter, on July 30, 2024, the trial court signed a judgment sustaining Defendant's exception of no cause of action. The Clerk of Court issued notice of the July 30, 2024 judgment to all enrolled counsel of record on July 31, 2024. Specifically, the record on appeal shows that notice of the July 30, 2024 judgment sustaining Defendant's exception of no cause of action was served on Defendant's attorney, Robert Aguiluz, and on Plaintiffs’ attorney, Seth Dornier. Notice to an attorney of record is notice to the client. Butler v. Sandberg, 2018-0917 (La. App. 1 Cir. 10/23/19), 289 So.3d 63 8, 642 n.3. Thus, at all times during the motion practice of the exception of no cause of action, Mr. Dornier was the enrolled attorney of record for Ms. McDaniel. Accordingly, contrary to Ms. McDaniel's assertion, she was served with notice of July 30, 2024 judgment sustaining Defendant's exception of no cause of action because her attorney, Mr. Dornier, was served with notice. This assignment of error is without merit.

Assignment of Error No. 1

In her first assignment of error, Ms. McDaniel argues that the trial court erred in sustaining Defendant's exception of no cause of action. As noted supra, Ms. McDaniel has appealed the September 10, 2024 judgment of dismissal; nevertheless, our review of that judgment necessitates an analysis of the substance of the July 30, 2024 judgment sustaining Defendant's exception of no cause of action. See, e.g., Henry v. Board of Supervisors of Louisiana Community & Technical College System, 2019-1672 (La. App. 1 Cir. 9/18/20), 313 So.3d 1009, 1011. Furthermore, Ms. McDaniel has briefed this assignment of error that the trial court erred in sustaining Defendant's exception of no cause of action.

As used in the context of the peremptory exception, a cause of action refers to the operative facts that give rise to a plaintiff's right to judicially assert an action against a defendant. Doe v. Dynamic Physical Therapy, LLC, 2024-0723 (La. App. 1 Cir. 12/27/24), 404 So.3d 1008, 1012, writ denied, 2025-00105 (La. 4/29/25), 407 So.3d 623. The exception of no cause of action is used to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Doe, 404 So.3d at 1012. The purpose of the exception of no cause of action is not to determine whether the plaintiff will ultimately prevail at trial, but to only ascertain if a cause of action exists. Doe, 404 So.3d at 1012. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. The court is confined to the four corners of the petition. La. C.C.P. art. 931; Bonnette v. State, 2006-1339 (La. App. 4 Cir. 11/14/07), 972 So.2d 340, 342. See also Credit v. Richland Parish School Board, 2011-1003 (La. 3/13/12), 85 So.3d 669, 674. The exception is triable on the face of the pleadings, and, for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Doe, 404 So.3d at 1012-13.

In reading a petition to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding a cause of action has been stated. Doe, 404 So.3d at 1013. However, the petition must set forth material facts upon which the cause of action is based. La. C.C.P. art. 891(A); Doe, 404 So.3d at 1013. The correctness of conclusions of law is not conceded for the purposes of a ruling on an exception raising the objection of no cause of action. Doe, 404 So.3d at 1013.

The burden of demonstrating that a petition fails to state a cause of action is on the mover. Doe, 404 So.3d at 1013. Because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition, a judgment sustaining an exception of no cause of action is reviewed by an appellate court de novo. Doe, 404 So.3d at 1013.

We first note that, on appeal, Ms. McDaniel has not briefed any assignment of error that the trial court erred in sustaining Defendant's exception of no cause of action and in dismissing Ms. McDaniel's claim for intentional infliction of emotion distress. It is well established that a court of appeal may consider as abandoned any specification or assignment of error which has not been briefed. State in Interest of N.J., 2020-0056 (La. App. 1 Cir. 7/24/20), 312 So.3d 295, 296. See also Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4). Therefore, any argument on appeal regarding Ms. McDaniel's claim for intentional infliction of emotional distress damages is deemed abandoned. Additionally, as noted supra, Mr. Touchet did not appeal any judgment of the trial court rendered in this matter; he has no appeal pending before this court. Thus, we will not address any arguments regarding whether Mr. Touchet stated a cause of action for either defamation or intentional infliction of emotional distress.

In her exception of no cause of action, Defendant contended that Ms. McDaniel did not sufficiently allege facts that, if taken as true, were sufficient to state a cause of action for defamation. On appeal, Ms. McDaniel argued that her first supplemental and amended petition for damages stated a cause of action for defamation. Specifically, she alleged that Defendant stated to Chloe, her friend C.C., and Rodney McGehee that Ms. McDaniel gave drugs and alcohol to Chloe when she was a minor to convince Chloe that she was molested by an uncle.

As set forth by the Louisiana Supreme Court in Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So.2d 129, 139-41.

Defamation is a tort which involves the invasion of a person's interest in his or her reputation and good name. Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. The fault requirement is often set forth in the jurisprudence as malice, actual or implied. Thus, in order to prevail on a defamation claim, a plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages. If even one of the required elements of the tort is lacking, the cause of action fails.

Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. To be actionable, the words must be communicated or “published” to someone other than the plaintiff.

In Louisiana, defamatory words have traditionally been classified into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se. When a plaintiff proves publication of words that are defamatory per se, the elements of falsity and malice (or fault) are presumed, but may be rebutted by the defendant. The element of injury may also be presumed. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice (or fault) and injury.

***

Finally, even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified.

(Citations and footnotes omitted).

For purposes of maintaining a defamation action, communication to a third party is considered a publication, if the communication is not subject to a privilege, absolute or qualified. Costello, 864 So.2d at 142. Privileged communications may be either: (1) absolute (such as statements by judges in judicial proceedings or legislators in legislative proceedings); or (2) conditional, or qualified. Cook v. American Gateway Bank, 2010-0295 (La. App. 1 Cir. 9/10/10), 49 So.3d 23, 33.

A conditional privilege may be found in situations in which the person's interest is regarded as sufficiently important to justify some latitude for making mistakes so that publication of the defamatory statement is conditionally privileged. Bradford v. Judson, 44,092 (La. App. 2 Cir. 5/6/09), 12 So.3d 974, 980, writ denied, 2009-1648 (La. 10/16/09), 19 So.3d 482. The basic elements of a conditional privilege are: (1) good faith; (2) an interest to be upheld; (3) a statement limited in scope to that interest; (4) a proper occasion for the communication of the statement; and 5) publication in a proper manner and to proper parties only. Cook, 49 So.3d at 33. The analysis of whether a conditional privilege exists is a two-step process. First, it must be determined as a matter of law whether the circumstances in which a communication was made satisfy the legal requirements for invoking the conditional privilege. The second step requires a determination of whether the privilege was abused, which requires a factual determination that malice or lack of good faith existed. Cook, 49 So.3d at 33. However, in circumstances in which a defendant enjoys only a qualified privilege, the existence of that privilege does not, on an exception of no cause of action, extinguish an otherwise well-pleaded cause of action for defamation. Stoll v. Stick, 2014-261 (La. App. 5 Cir. 12/16/14), 166 So.3d 250, 253.

As the Louisiana Supreme Court explained in Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 73 7 So.2d 706, 717, there are three types of defamatory statements that are actionable in Louisiana: (1) false defamatory statements of fact; (2) statements of opinion which imply false, defamatory facts; and (3) truthful statements which carry a defamatory implication. If a statement expresses an opinion, a defamatory action must fail, unless the opinion implies a false and libelous fact and the opinion was expressed with actual malice. Wainwright v. Tyler, 52,083 (La. App. 2 Cir. 6/27/18), 253 So.3d 203, 219.

To plead material facts, a petitioner alleging a cause of action for defamation must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant. Fitzgerald, 737 So.2d at 713. Herein, Ms. McDaniel claims Defendant wrongfully accused her of criminal activity (giving drugs and alcohol to Chloe when she was a minor), which would be defamatory per se and relieve Ms. McDaniel of the requirement to allege facts establishing the third and fourth elements of defamation, (3) fault and (4) injury. See Costello, 864 So.2d at 139.

Ms. McDaniel made the following allegations in her first supplemental and amended petition:

• “On May 25, 2023, upon the arrival of the major daughter of Charlotte C. McDaniel to the residence of Loretta McGehee and Rodney McGehee, Loretta McGehee did defame Charlotte McDaniel ․ in the presence of Rodney McGehee, Chloe ․, the major daughter of Charlotte C. McDaniel[,] and Chloe[’s] ․ friend, the minor child[, C.C.].”

This statement that Defendant “did defame” Ms. McDaniel is conclusory and not supported by facts.

• “Loretta McGehee stated to the major daughter of Charlotte C. McDaniel and her friend, the minor child C.C.[,] that while the child lived with Charlotte McDaniel, Charlotte McDaniel had drugged her daughter during the period of minority.”

• “Loretta McGehee stated to the major daughter of Charlotte C. McDaniel and her friend, the minor child C.C.[,] that while the child lived with Charlotte McDaniel[,] Charlotte McDaniel had provided alcohol to her then minor daughter with the purpose of manipulating the daughter to believe that she was not groomed by an uncle[.]”

Plaintiffs’ first supplemental and amended petition for damages also included excerpts of a lengthy statement provided by the minor child, C.C., which is a narrative of the events May 25, 2023.¹⁸ Included therein:

• “The Grandmother kept telling [Chloe]: ‘You are confused about what you think ․ it was the drugs and alcohol your mother gave you[.]” ’

• “[T]he Grandmother would tell Chloe, ‘she was wrong, she wasn't remembering it correctly, it was the drugs and alcohol her mother gave her.’ ”

• “․ ‘Chloe was just confused, that her memory was not right, that it was the drugs and alcohol given to her by her mother, Charlotte McDaniel McGehee.’ ”

• “The Grandmother ․ was saying that it was Charlotte ․ who gave Chloe drugs and alcohol.”

• “Then it became, ‘your mother drugged you and gave you alcohol[.]’ ”

Louisiana law allows a person under twenty-one to drink alcohol when accompanied by a parent, legal guardian, or spouse who is over twenty-one years of age. See La. R.S. 14:93.10; La. R.S. 14:93.12. A parent, legal guardian, or spouse can also purchase alcohol for a person under twenty-one years of age. See La. R.S. 14:93.13. It is only illegal for persons under twenty-one years of age to consume alcohol in public. See La. R.S. 14:93.12; La. R.S. 14:93.10. Louisiana also allows a parent or legal guardian to give prescription medications to a child with a valid prescription in the child's name and in accordance with the medication instructions. See La. R.S. 40:971 and La. R.S. 40:967.

There are no factual allegations contained in Plaintiffs’ first supplemental and amended petition that Defendant stated Ms. McDaniel gave Chloe alcohol and left Chloe unaccompanied or in public, or that Ms. McDaniel gave Chloe drugs without a valid prescription. Because Ms. McDaniel failed to allege facts with reasonable specificity as to Defendant's defamatory statement (that Ms. McDaniel gave drugs and alcohol to Chloe when she was a minor), see Fitzgerald, 737 So.2d at 713, we are unable to determine from the facts alleged whether the committed acts are illegal. Thus, Defendant's statement does not constitute defamation per se. Ms. McDaniel is therefore required to allege facts establishing all four elements of a cause of action for defamation.

The fault, or actual malice, requirement in making a defamatory statement is defined as a defamatory publication that was made with knowledge that it was false or with reckless disregard of whether it was false or not. Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 561. Conduct which would constitute reckless disregard is typically found where a story is fabricated by the defendant, is the product of his imagination, or is so inherently improbable that only a reckless man would have put it in circulation. Trentecosta, 703 So.2d at 561-62. In the instant case, Ms. McDaniel alleged no facts that Defendant made statements with knowledge of falsity or reckless disregard of whether the statements were false. If anything, the words about which Ms. McDaniel takes issue are not actionable in defamation under Louisiana law. As factually alleged, the complained-of words are pure statements of Defendant's opinion, which is based solely on her subjective view. See Bussie v. Lowenthal, 535 So.2d 378, 381-82 (La. 1988). That is because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false. Quinlan v. Sugar-Gold, 51,191 (La. App. 2 Cir. 4/5/17), 219 So.3d 1173, 1185.

As to the unprivileged publication to a third party requirement in making a defamatory statement, Defendant argues on appeal that her statements are protected by a qualified, or conditional, privilege. Because this appeal stems from an exception of no cause of action, Ms. McDaniel is not required to refute the affirmative defense of Defendant's alleged conditional privilege. However, Ms. McDaniel is required to allege facts to show the second element of defamation: an unprivileged publication to a third party. Ms. McDaniel did not assert any facts regarding whether the alleged false statements were an unprivileged publication to a third party. See Garsee v. Sims, 54,832 (La. App. 2 Cir. 1/11/23), 355 So.3d 1149, 1156, writ denied, 2023-00407 (La. 6/21/23), 362 So.3d 428.

For the reasons discussed above in our de novo review, we find that Ms. McDaniel failed to allege facts to state a cause of action for defamation against Defendant. The trial court properly sustained Defendant's exception of no cause of action. This assignment of error is without merit.

Assignment of Error No. 4

In Ms. McDaniel's fourth assignment of error, she argues that the trial court erred in: granting a final ex parte judgment of dismissal without notice to Ms. McDaniel and without a contradictory hearing; miscalculating the time in which Ms. McDaniel could file an amendment; and failing to consider that prior to the dismissal, Ms. McDaniel had served a second amending and supplemental petition on Defendant's attorney by August 29, 2024, and the Clerk of Court filed the supplemental petition into the record on September 4, 2024, prior to the September 10, 2024 signing of the judgment of dismissal.

“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 (Emphasis added). Regarding a motion seeking an ex parte order of dismissal, “[i]f the order applied for by written motion is one to which the mover is clearly entitled without supporting proof, the court may grant the order [ex parte] and without hearing the adverse party.” La. C.C.P. art. 963(A). The language of La. C.C.P. art. 934 and Louisiana jurisprudence reflect that the lapse of the time to amend does not automatically result in dismissal of the plaintiff's claims; rather, some action on behalf of the trial court or defendant is required. See La. C.C.P. art. 934 (“․ if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.”); Henry, 313 So.3d at 1014.

The July 30, 2024 judgment sustaining Defendant's exception of no cause of action decreed that Plaintiffs “shall file any amendment to the petition seeking to state a cause of action with[in] thirty (30) days of the date of this judgment.” Accordingly, Plaintiffs had until August 29, 2024 to file an amended petition. See La. C.C.P. art. 5059; La. R.S. 1:55; La. Dist. Court Rules–Rule 1.5. Plaintiffs failed to do so. Louisiana Code of Civil Procedure article 934 provides, in pertinent part, that “if plaintiff fails to comply with the order to amend, the action shall be dismissed.” The word “shall” is mandatory when used in the Code of Civil Procedure. La. C.C.P. art. 5053. The record in this matter demonstrates on its face that Plaintiffs did not timely file an amended petition prior to the time Defendant filed the motion to dismiss, and no supporting proof was necessary. In this factual posture, the trial court had no discretion, and the order of dismissal had to be granted. Batson v. Cherokee Beach & Campgrounds, Inc., 470 So.2d 478, 479 (La. App. 1 Cir. 1985). The trial court's signing of the September 10, 2024 ex parte judgment of dismissal was correct.

Furthermore, after reviewing the record on appeal, we find there is absolutely no truth nor accuracy to Ms. McDaniel's assertion that prior to Defendant's filing of the motion to dismiss, Ms. McDaniel served a second amending and supplemental petition on Defendant's attorney by August 29, 2024, and the Clerk of Court filed the supplemental petition into the record on September 3, 2024, prior to the September 10, 2024 signing of the judgment of dismissal. Ms. McDaniel's argument fails for several reasons. First, the record on appeal contains no certificate of service showing service of the second amending and supplemental petition on Defendant by August 29, 2024.¹⁹ Second, it is impossible for Plaintiffs’ second amending and supplemental petition to have been served on Defendant prior to September 3, 2024, because the record clearly shows that the amended petition was not filed into the trial court record, electronically or otherwise, until September 3, 2024. A petition cannot be served on a defendant unless it has first been filed. See La. C.C.P. art. 1201(C) (“Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested[.]”). Thus, Ms. McDaniel's argument that she served Defendant with the amended petition prior to filing the amended petition is nonsensical.²⁰ For the foregoing reasons, this assignment of error is without merit.

DECREE

We affirm the trial court's September 10, 2024 judgment of dismissal. All costs of this appeal are assessed to the appellant, Charlotte C. McDaniel.

AFFIRMED.

FOOTNOTES

2.   The referenced litigation is not a part of the record on appeal.

3.   For ease of reference, we refer to the dilatory exception raising the objection of vagueness or ambiguity of the petition as an “exception of vagueness.”

4.   Plaintiffs’ request for default judgment, allegedly filed on July 13, 2023, is not contained in the record on appeal. A court of appeal is a court of record, which must limit its review to evidence in the record before it and render its judgment upon the record on appeal. Appellate courts may not review evidence that is not in the appellate record or receive new evidence. La. C.C.P. art. 2164; Thibodeaux v. Rental Ins. Services, Inc., 2013-1947 (La. App. 1 Cir. 4/24/15), 2015 WL 1882456, *5 (unpublished), writ denied, 2015-1213 (La. 9/25/15), 178 So.3d 567. Further, appellate courts do not rely on a party's statements or arguments in briefs to determine facts of the matter before it. Marco Outdoor Advertising, Inc. v. Dep't of Transportation & Dev. By & Through Wilson, 2021-0123 (La. App. 1 Cir. 7/13/21), 329 So.3d 288, 294, writ denied, 2021-01195 (La. 11/10/21), 326 So.3d 1247. We are not aware if Ms. McDaniel designated the record on appeal, as there is no writing contained in the record on appeal by Ms. McDaniel that designated which portions of the record she desired to constitute the record on appeal. See La. C.C.P. arts. 2127 and 2128; Uniform Rules—Courts of Appeal, Rules 2-1 through 2-1.18. See also Bezet v. Original Library Joe's, Inc., 2001-1586 (La. App. 1 Cir. 6/21/02), 835 So.2d 472, 475. Ms. McDaniel, as the appellant herein, is charged with the responsibility of completeness of the record for appellate review. Thus, any inadequacy of the record is imputable to her. See Niemann v. Crosby Development, Co., L.L.C., 2011-1337 (La. App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044.

5.   The record on appeal includes the Clerk of Court's certification pursuant to La. C.C.P. art. 1702.1(B) issued on July 13, 2023, which provided, in pertinent part: “No answer or other pleading has been filed within the time prescribed by law by [d]efendants[.]” Defendant argues on appeal that Ms. McDaniel “might have been initially misled by the Clerk's erroneous certification that no responsive pleading had been filed[.]”

6.   Defendants’ motion to disqualify Ms. McDaniel as counsel is not contained in the record on appeal. As set forth in Footnote 4 supra, any inadequacy of the record is imputable to Ms. McDaniel. Our purpose in referencing the motion to disqualify is to provide background information, as the disqualification of Ms. McDaniel, discussed infra, is assigned as error by her on appeal.

7.   Plaintiffs sought to dismiss their claims for damages against Rodney McGehee, alleging that he was “a witness to the events and suggested to Loretta McGehee that she should not make the defaming comments to Chloe ․ or ․ [C.C.].”

8.   The first supplemental and amending petition for damages avers that C.C.’s affidavit was attached to the petition; however, that exhibit is not contained in the record on appeal. As set forth in Footnote 4 supra, any inadequacy of the record is imputable to Ms. McDaniel.

9.   The transcript of the February 23, 2024 hearing on the motion to disqualify Ms. McDaniel as counsel is not contained in the record on appeal. As set forth in Footnote 4 supra, any inadequacy of the record is imputable to Ms. McDaniel.

10.   This court issued the following action in Touchet, 2024 WL 3755558 at *1:WRIT NOT CONSIDERED. This writ application fails to comply with Uniform Rules of Louisiana Courts of Appeal, Rule 4-5(C)(8) and (10). Relators, Christian Kyle Touchet and Charlotte C. McDaniel, failed to include a copy of the pleadings upon which the ruling was founded or a copy of the pertinent court minutes. Moreover, the writ application did not include a transcript of the hearing. Relators failed to provide proof that the notice of intent filed on April 26, 2024, was timely under Uniform Rules of Louisiana Courts of Appeal, Rules 4-2 and 4-3, in accordance with the provisions of La. Code Civ. P. art. 1914(A) and (B). The notice of intent was filed more than 30 days after the hearing.Supplementation of this writ application and/or an application for rehearing will not be considered. Uniform Rules of Louisiana Courts of Appeal, Rules 4-9 & 2-18.7.In the event relator seeks to file a new application with this court, it must contain all pertinent documentation, the missing items noted above, and must comply with Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.2. Any new application must be filed on or before September 11, 2024, and must contain a copy of this ruling.

11.   On March 27, 2024, the recently disqualified Ms. McDaniel filed a motion and order to enroll Mr. Dornier as counsel of record for herself and Mr. Touchet. Ms. McDaniel submitted and signed the motion with her own name, on her own behalf, and on behalf of Mr. Touchet. The trial court denied the motion on April 1, 2024, and included a handwritten note stating that Ms. McDaniel had been disqualified from representation of all parties in this case.

12.   For ease of reference, we refer to the peremptory exception raising the objection of no cause of action as an “exception of no cause of action.”

13.   Ms. McDaniel has not argued—neither in the trial court nor on appeal—that Plaintiffs’ enrolled counsel of record, Mr. Dornier, was not properly served with notice of the order that set the July 23, 2024 court date for the hearing on Defendant's exception of no cause of action. In fact, in her motion for appeal, Ms. McDaniel certified that the exception of no cause of action “was served upon Seth Dornier who did not appear for the setting of the oral argument for the exception[.]” Appellate courts will not consider issues raised for the first time, which are not pleaded in the court below, and which the trial court has not addressed. Council of City of New Orleans v. Washington, 2009-1067 (La. 5/29/09), 9 So.3d 854, 856. Accordingly, we pretermit any discussion regarding service of process of the order setting the July 23, 2024 court date for the hearing on Defendant's exception of no cause of action.

14.   This court issued the following action in Touchet, 2024 WL 4815489 at *1:STAY DENIED; WRIT NOT CONSIDERED. This writ application is untimely. Relators’ notice of intent was filed on April 26, 2024, more than thirty days after the district court signed a judgment granting the defendants” motion to disqualify, and notice of judgment was mailed on March 20, 2024. See La. Code of Civ. P. art. 1914; see also Rule 4-3 of the Uniform Rules of Louisiana Courts of Appeal.

15.   The only appellant in this matter is Ms. McDaniel. Although the motion and order for devolutive appeal states “NOW INTO COURT comes the Plaintiffs, Christian Touchet and Charlotte McDaniel,” and the cover page of the appellant brief lists both Ms. McDaniel and Mr. Touchet's names, the motion for appeal requested that the trial court grant “Plaintiff’ (singular) an appeal and prayed that the trial court “specifically allow Ms. Charlotte McDaniel to proceed by appeal[.]” Furthermore, the motion was submitted and signed by Ms. McDaniel on her own behalf, and the signature block does not indicate that the motion was also filed on behalf of Mr. Touchet. As previously discussed, Ms. McDaniel was disqualified from representing Mr. Touchet via the trial court's March 19, 2024 judgment. No motion for appeal was filed by Mr. Touchet in a pro se capacity nor filed on his behalf by his enrolled attorney of record, Mr. Dornier. For these reasons, we recognize that Mr. Touchet has no appeal before this court.

16.   Our supervisory jurisdiction extends to interlocutory judgments and non-certified partial final judgments and may be invoked via a timely-filed writ application. See La. Const. Art. 5, § 10; La. C.C.P. arts. 1841, 1915(B), 2201, and 2083(C); Dobyns v. University of Louisiana System, 2018-0488 (La. App. 1 Cir. 6/12/19), 2019 WL 2462496, *3 n.9 (unpublished).

17.   As discussed in Footnote 13 supra, Mr. Dornier's failure to appear at the July 23, 2024 hearing on Defendant's exception of no cause of action is not at issue in this appeal.

18.   The first supplemental and amended petition for damages avers that the information provided by C.C. was attached to the petition as Exhibit A. The record on appeal does not contain this attachment. As set forth in Footnote 4 supra, any inadequacy of the record is imputable to Ms. McDaniel.

19.   Defendant argues in her appellee brief that Ms. McDaniel electronically served Defendant with the second amending and supplemental petition on September 3, 2024, the same day she filed the amended petition into the record; however, that email transmission is not a part of the record on appeal. As stated in Footnote 4 supra, appellate courts may not review evidence that is not in the appellate record or receive new evidence. Further, appellate courts do not rely on a party's statements or arguments in briefs to determine facts of the matter before it. Marco Outdoor Advertising, 329 So.3d at 294.

20.   An apparent typographical error contained in Defendant's motion to dismiss may be the basis for Ms. McDaniel's misunderstanding in this regard. Defendant's August 30, 2024 motion to dismiss requested an ex parte order pursuant to La. C.C.P. art. 963, dismissing the “[s]econd [a]mending and [s]upplemental [petition of Plaintiffs[.]” It is unclear why Defendant referenced a second amending and supplemental petition when that pleading had not yet been filed as of August 30, 2024.

EDWARDS, J.