Scott v. Hogan
255 So. 3d 24
La. Ct. App.2018Background
- Scott (plaintiff) obtained an ex parte temporary restraining order on June 8, 2017 and a protective order on June 28, 2017 against Hogan (defendant) alleging harassment, trespass, and receipt of mail addressed to Hogan at Scott’s home after Hogan was fired from their mutual employer.
- The protective order was issued on the Louisiana Uniform Abuse Prevention Order form and checked the box for the Protection for Victims of Sexual Assault Act (La. R.S. 46:2181 et seq.), prohibiting harassment, contact, proximity, workplace interference, and property interference through June 28, 2018.
- Hogan was served with the TRO, did not timely appear at the June 28 hearing (arrived after the hearing ended), and did not file opposition; he later moved for a new trial and to dissolve/modify the order, which the trial court denied.
- On appeal Hogan argued (1) due process violation for being absent at the hearing and alleged minute-entry amendment impropriety; (2) plaintiff failed to prove sexual assault or present/immediate danger; and (3) incorrect statutory basis (sexual-assault statute used rather than stalking statute).
- The appellate court reviewed the record, denied Hogan’s motion to supplement the record, found no due-process violation, but concluded the evidence did not show sexual assault under La. R.S. 46:2184 and that the trial court likely intended to issue protection under the stalking statute (La. R.S. 46:2171).
- The court recalled and vacated the protective order as issued under the Sexual Assault Act and remanded for further proceedings consistent with the opinion; appeal costs split equally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was denied due process by issuance of the protective order while absent at the hearing | Scott relied on the ex parte TRO and hearing testimony; TRO served on Hogan provided notice | Hogan said he arrived late due to courthouse security and the court proceeded without him; minute entry amendment suggests impropriety | No due process violation; Hogan had notice of hearing, admitted he was late, transcript controls over minutes, and he had meaningful opportunity to be heard |
| Whether plaintiff met burden to obtain protective order under Protection for Victims of Sexual Assault Act | Scott sought protection alleging behavior (trespass, mail) that threatened her safety | Hogan argued plaintiff failed to prove sexual assault or immediate danger by a preponderance of the evidence | Court held plaintiff did not show sexual assault as defined by statute; evidence supported stalking but not sexual-assault threshold |
| Whether the trial court abused discretion issuing order under sexual-assault statute rather than stalking statute | Scott sought protection from harassment/stalking conduct | Hogan argued statutory basis was incorrect and protections under sexual-assault statute were not available | Court found abuse of discretion to issue order under sexual-assault statute; likely clerical error checking wrong box and vacated that order |
| Remedy / disposition: next steps after vacatur | Scott implicitly sought continuation of protective measures | Hogan sought dissolution/modification or new trial | Court recalled and vacated the order as issued under La. R.S. 46:2181, remanded for proceedings consistent with opinion (court may consider proper stalking statute) |
Key Cases Cited
- Rouyea v. Rouyea, 808 So.2d 558 (La. App. 1st Cir.) (trial court credibility and abuse-of-discretion standard for protective orders)
- James v. Warren, 240 So.3d 967 (La. App. 1st Cir.) (standard of review for protective-order rulings)
- Williams v. Cooper, 945 So.2d 48 (La. App. 1st Cir.) (transcript controls over conflicting minute entries)
- Bays v. Bays, 779 So.2d 754 (La. 2001) (meaningful opportunity to be heard required for procedural due process)
- Paschal v. Hazlinsky, 803 So.2d 413 (La. App. 2d Cir.) (due process requires some hearing and notice)
- Niemann v. Crosby Dev. Co., 92 So.3d 1039 (La. App. 1st Cir.) (appellate courts limited to record on appeal; cannot receive new evidence)