Monica Tinoco v. Allan Tinoco

MONICA TINOCO * NO. 2023-CA-0051

VERSUS *
COURT OF APPEAL
ALLAN TINOCO *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2014-03777, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Roland L. Belsome
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(Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins,
Judge Rachael D. Johnson)

JOHNSON, J., CONCURS IN THE RESULT
JENKINS, J., DISSENTS WITH REASONS

Scott Jerome Spivey
SCOTT J SPIVEY, APLC
412 Dauphine Street
Suite 4B
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLEE

Leonard L. Levenson
Donna R. Barrios
Christian W. Helmke
Colleen Boyle Gannon
LEONARD L. LEVENSON & ASSOCIATES
650 Poydras Street
Suite 2750
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
EXCEPTION OF PRESCRIPTION DENIED
DATE: October 24, 2023

RLB
Defendant-Appellant, Allan Tinoco (AT), seeks review of the trial court’s

February 23, 2022 judgment granting past and future medical costs, as well as,

pain and suffering damages for Plaintiff-Appellee, Monica Tinoco (MT). Given

that the trial court’s judgment is not manifestly erroneous: we affirm. Furthermore,

the Appellant’s Exception of Prescription is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises from an alleged sexual abuse of MT at the hands of her

father, AT. The petition alleges that AT sexually abused MT between the ages of

roughly five to ten years old. The abuse was described as “over the clothes”

touching of MT’s pelvic area and buttocks, while MT was living with AT during

her childhood.

The lawsuit was filed in April of 2014, one month before the ten-year

statutory period would have expired as a result of MT reaching the age of majority.

The two main contentions of the appeal are that (1) the alleged “abuse” was

touching over the clothes and the statute1 at the time did not prohibit that specific

1 La. R.S. 14:43.1

1

action and (2) the prescriptive period used by MT is incorrect since the alleged

actions did not constitute “abuse” under Louisiana Children’s code art. 603(1).

After hearing testimony from both parties’ witnesses, the trial court found

for MT based on the court’s credibility determination of her witnesses and the

evidence that was offered to the court. In its judgment, the trial court awarded MT

$150,000 for a combination of past medical expenses, future medical expenses,

and mental anguish. The final judgment was entered on February 23, 2022 and a

motion for new trial was timely filed on March 8, 2022. The motion for new trial

was denied on October 26, 2022. This appeal followed. AT filed an exception of

prescription arguing that the prescriptive period should fall under La. R.S. 34:96.1

instead of La. R.S. 9:2800.9. After hearing arguments from both sides, we deny the

exception for reasons in this opinion.

STANDARD OF REVIEW

“Generally, an appellate court may not set aside a trial court’s or jury’s

finding of fact in absence of manifest error or unless it is clearly wrong.” Laboriel-

Pitio v. Latiker, 2020-0669, p. 8 (La. App. 4 Cir. 6/16/21), 323 So. 3d 929, 935.

When “there is conflict in testimony, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review, even though an

appellate court may feel that its own evaluations and inferences are as reasonable.”

Id. (citing Brown v. Unkown Driver, 2005-0421, p. 3 (La. App. 4 Cir. 1/18/06), 925

So. 2d 583, 586.

This standard of review can shift when the court applies incorrect principles

of law. When legal error impedes the fact finding process “the manifest error

standard of review is no longer applicable, and, if the record is otherwise complete,

the appellate court should make an independent de novo review of the record and

2

determine which party should prevail by a preponderance of evidence.” Chambers

v. Village of Moreauville, 11-0898, p. 4, 85 So.3d at 597. “There is a legal error

when a trial court applies incorrect principles of law and these errors are

prejudicial.” Chambers, 2020-669, p. 8-9, 323 So. 3d at 935. Legal errors are

deemed to be prejudicial “when they deprive a party of substantial rights and

materially affect the outcome.” Id.

DISCUSSION

Appellant asserts nine assignments of error, which we have divided into four

categories: 1) the trial court did not properly determine liability based on the

finding of facts; 2) the Appellee did not meet her burden of proof based on the

statutory language at the time of the alleged abuse; 3) the trial court abused its

discretion in awarding the Appellee monetary damages and setting an unreasonable

time for future psychotherapy sessions; and 4) the trial court committed manifest

error by giving credibility to the Appellee’s witnesses.

First, Appellant argues that the trial court erred when it ruled that Appellee

had proven liability. The Appellant contends that in order for the trial court to have

found for the Appellee without issuing a findings of fact then the court must have

applied incorrect principles of law. Normally, an appellate court may not set aside

a trial court or jury’s findings of fact unless it is clearly wrong or there is manifest

error. If one of those exist, then the standard of review shifts and if the record is

otherwise complete, the appellate court has the discretion to make an independent

de novo review of the record to determine which party should prevail. See

Laboriel-Pitio, 2020-0669, p. 8, 323 So. 3d at 935.

In the trial court’s reasons for judgment, the court states,

3

the role of this court is to review the testimony and evidence presented at
trial, make the necessary credibility determinations, and award an amount
that it finds appropriate in light of the circumstances of the case before it.
After a careful review of the testimony elicited at trial, the respective
credibility determinations of same, the exhibits entered into evidence, and
the vast discretion granted to it by Louisiana Civil code art. 2324.1 and the
jurisprudence interpreting same, this court finds a reasonable amount of
general damages to be awarded for mental anguish and emotion distress
under the particular circumstances of this case is $117,500.00

The trial court entered its decision weighing the credibility of every piece of

information, testimony, and evidence. While there is no mention in the reasons for

judgment of the principles of law used, throughout the trial, the court repeatedly

used La. R.S. 14:43 as its basis.2 The Appellant disagrees with the trial court’s

interpretation of the statute based on the lack of certain verbiage that existed in the

statute at the time of the alleged offense. In the review of the present case, we find

that the trial court incorrectly applied the principles of law. Therefore, the burden

shifting language of Laboriel-Pitio does not apply.

Second, Appellant contends that the Appellee did not meet her burden of

proof on the issue of abuse based on the statutory language in effect at the time of

the alleged abuse. The Appellant contends that in the mid-1990’s, when the abuse

allegedly occurred, the Louisiana Children’s Code article 603 did not define “over

the clothes” touching as “abuse”. Therefore that form of contact with a minor did

not constitute “abuse” at that time.3 In 2015, the statute was amended to prohibit

2 The interpretation of La. R.S. 14:43 is another point of contention for the Appellant that will be

discussed in the next section of assignments of error.
3 Louisiana Children’s Code Article 603 at the time of the abuse stated:

As used in this Title:
(1) “Abuse” means any one of the following acts which seriously endanger the physical,
mental, or emotional health and safety of the child:
(a) The infliction, attempted infliction, or, as a result of inadequate supervision, the
allowance of the infliction or attempted infliction of physical or mental injury upon the
child by a parent or any other person.
(b) The exploitation or overwork of a child by a parent or any other person.

4

touching of the genitals over the victim’s clothing, but there is no language making

the new language retroactive.4

Although touching genitals or buttocks “over the clothes” was not defined as

“abuse” in the statute, case law in Louisiana interprets “over the clothes” touching

as abuse.

In State v. Bouton, 615 So.2d 23 (La. App. 3 Cir. 03/03/1993), a case with

similar facts, a parent touched two children in their genital region over the clothes5.

The Third Circuit held “[w]e find that clothing constitutes an instrumentality with

which to touch the victim's genitals. Therefore, the fact that defendant touched the

victims through their clothes is not a defense to the crime of sexual battery.” Id. at

26. The Bouton court’s ruling, twenty-three years before the statute was changed,

demonstrates that touching through the clothes of specific areas of the body would

(c) The involvement of the child in any sexual act with a parent or any other person, or
the aiding or toleration by the parent or the caretaker of the child's sexual involvement
with any other person or of the child's involvement in pornographic displays, or any other
involvement of a child in sexual activity constituting a crime under the laws of this state.

4 The current version of La. R.S. 43.1 states in part:

Sexual battery is the intentional touching of the anus or genitals of the victim by the
offender using any instrumentality or any part of the body of the offender, directly or
through clothing, or the touching of the anus or genitals of the offender by the victim
using any instrumentality or any part of the body of the victim, directly or through
clothing.
The Previous language of La. R.S. 14:43.1 stated
“Sexual battery is the intentional engaging in any of the following acts with another
person where the offender acts without the consent of the victim, or where the act is
consensual but the other person, who is not the spouse of the offender, has not yet
attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genital of the victim by the offender using any
instrumentality or any part of the body of the offender; or
(2) The touching of the anus or genitals of the offender by the victim using any
instrumentality or any part of the body of the victim.”
5 Bouton pertained to a thirty-six year old man who sexually abused two girls, ages nine and

eleven, during a sleepover. In the girls’ testimony, they specifically stated that all the touching of
their genital and chest areas happened “over the clothes”. Id. at 24

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constitute sexual assault. Therefore, Appellant’s defense based on the amendment

of La. R.S. 14:43 is without merit.

Third, Appellant contends that the monetary award given to the Appellee

regarding past and future medical expenses to seek psychotherapy was excessive

and not backed by any evidence. In MT’s original claim, she asked to be awarded

compensation for forty-eight years of weekly future psychotherapy sessions.6 The

Appellant contends that this order was excessive due to the testimony that MT

went to psychotherapy for a multitude of reasons, not just due to the mental

anguish she felt due to the alleged abuse she faced as a child.7 When the court

ruled in favor of MT, it limited the future psychotherapy sessions to only thirty

years and to the sessions being once a month based on her previous propensity of

attending psychotherapy sessions from 2017 to 2021.8

In its reasons for judgment, the trial court turned to a former Fourth Circuit

opinion Doe v. Roman Catholic Church for Archdiocese of New Orleans, 615 So.

2d 410 (La. App. 4 Cir. 1993) to explain how the Court came to their decision

regarding general damages.9 The trial court relies on how the jury reached its

conclusion in awarding damages to the plaintiff. In Doe,

Under the rule established by the Louisiana Supreme Court for appellate
review of damage awards set by trial courts, a “reviewing court must look
first, not to prior awards, but to the individual circumstances of the present
case.” Reck v. Stevens, 373 So.2d 498, 501 (La.1979). A damage award may
not be disturbed in the absence of an abuse of discretion. Bitoun v.
Landry, 302 So.2d 278, 279 (La.1974). “The pertinent question in
determining whether an abuse of discretion has occurred is whether the
award of the trial court can reasonably be supported by the evidence and

6 Roughly totaling $194,655.00
7 Some of the reasons for therapy other than AT’s alleged sexual abuse were seeing her friend’s

mother’s night gown catch on fire, a district manager tried to forcibly touch and kiss her, and she
saw the aftermath of a crime scene where her uncle had shot himself.
8 Totaling $30,000
9 Doe pertained to a 14 year old girl who was sexually molested by a youth organization leader,

who was also her algebra tutor at the time of the molestation.

6

justifiable inferences from that evidence.” Baker v. City of New Orleans, 555
So.2d 659, 662 (La.App. 4th Cir.1989), writ denied 558 So.2d 603
(La.1990), citing Bitoun, 302 So.2d at 279.

The trial court in Doe determined that the reviewing court must take into

account the individual circumstances of each case and that the award must be

supported by the evidence so that the award can be justified.

The trial court in this instance reviewed the evidence and testimony and

found a reasonable amount of damages that could be justified based on the weight

of all the evidence and testimony was $117,500.

Finally, Appellant contends the trial court committed manifest error by

giving credibility to the plaintiff’s witnesses. Between Myra Hidalgo, the

Appellee’s therapist, whose testimony conflicted with the certificate of merit she

executed in support of Appellees’ petition and admitted bias; and Martha Portillo,

the Appellee’s mother, who had a lack of memory and was also in divorce

proceedings at the time of trial, the Appellant contends that the trial court should

not have accorded either of their testimonies any credibility.

The Appellant contends that Ms. Hidalgo’s testimony conflicts with her

Certificate of Merit. Under La. R.S. 9:2800.9(2)(B), “Every plaintiff twenty-one

years of age or older at the time the action is filed shall file certificates of merit

executed by the attorney for the plaintiff and by a licensed mental health

practitioner selected by the plaintiff.”10 The Appellant argues that Ms. Hidalgo did

not perform her treatment for “forensic or legal evaluation.”

10 Under La. R.S. 2:800.9, a mental health specialist certificate of merit must meet the following

requirement: (2) That the mental health practitioner consulted is licensed to practice and
practices in this state and is not a party to the action, has interviewed the plaintiff and is
knowledgeable of the relevant facts and issues involved in the particular action, and has
concluded, on the basis of his knowledge of the facts and issues, that in his professional opinion

7

There is no language that would disqualify Ms. Hidalgo based on a conflict

with her Certificate of Merit. Although, Ms. Hidalgo’s statements about potential

bias would call into question her credibility. During her testimony, when asked if

she was biased against the Appellant, she responded “[O]f Course, I am. I’ve never

- - I’ve never interacted with him, and I’ve only had Ms. Tinoco’s comments, and

she’s been hurt by him.” These comments could reasonably lead a fact finder to

determine that the testimony of Ms. Hidalgo should not be afforded any credibility.

Secondly, the Appellant argues that due to the ongoing divorce litigation and

Ms. Portillo pressuring MT to file the suit that she is not a credible witness. In Ms.

Portillo’s testimony, when asked about the divorce proceedings, she states:

Q. Now, you are embroiled in ongoing litigation with Mr. Tinoco over your
community property, right?
A. Oh, yes.
Q. That has been going on since 2012 or 2013, correct?
A. Yes.
Q. And you are very angry and frustrated that that will not come to an end,
aren't you?
A. Yes.

This combined with MT’s testimony about the pressure she faced from her

mother to file this suit before the prescription period compounds her credibility

concerns. In her testimony MT mentions:

Q. did you ever tell Ms. Hildago that you thought that your mother was
trying to get an advantage in the divorce by having you file the suit or report
to the police?
A. Not that I can recall.
Q. Did you ever tell Ms. Hildago that you might have been feeling pressure
from your mother to file the suit and report to the police?
A. I felt pressure, yes

there is a reasonable basis to believe that the plaintiff has been subject to criminal sexual activity
or physical abuse during his childhood as defined in this Section.

8

After this, during her testimony she also received a message on her phone

that she claimed to be a translation. Overall, Ms. Portillo’s testimony coupled with

her actions bring her credibility as a witness into question.

The Appellant argues that the interpretation of the language of the statute, in

regards to the type of contact that allegedly occurred, is imperative to the outcome

of this case. After weighing the argument, we agree that there is no specific

language in the former version of La. R.S. 14:43.1 in regards to “over the clothes”

touching, as well as no reference to a change in the legislative intent to make any

new versions of the statute retroactive, but due to specific case law from this court

regarding this argument,11 we find that argument does not have merit.

In upholding the trial court’s decision to award the Appellee monetary

damages, we find the trial court considered a review of the testimony elicited at

trial, the credibility of the same, and the exhibits entered into evidence. Under

these circumstances, we find the trial court’s ruling was reasonable and

commensurate with the severity of the offense in regards to the monetary award.

Considering our review of the record, we conclude that the trial court’s

ruling for the Appellee, regarding the alleged sexual abuse she went through as a

child, withstands the Appellant’s contentions. Therefore, we find no error in the

trial court’s ruling.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Additionally, the Appellant’s Exception of Prescription is denied.

11 See Bouton, (La. App. 3 Cir. 03/03/1993), 615 So. 2d 23

9