The plaintiff, a member of the Concordia Parish Police Jury, filed a suit for defamation, intentional infliction of severe emotional distress, malicious prosecution, and abuse of process. The defendants filed a motion to strike under La.Code Civ.P. art. 971 and a motion for summary judgment, alleging that the statements at issue were matters of public concern as they related to matters before the Police Jury. The trial court denied the motions. For the following reasons, we grant the motion to strike pursuant to the dictates of La.Code Civ.P. art. 971 and award attorney's fees as is required by the article.
Factual and Procedural Background
The instant matter relates to the proposed construction of a low-income housing development in Ferriday, Louisiana. After approval of the project was rejected by the Concordia Parish Police Jury, the project proponent, Ferriday Villa Partnership, and its general partner, R. Craig Smith, filed suit in federal court alleging that the denial of the permit was [B]ased solely on discriminatory policies toward entities that provide federally-assisted-low-income housing. The Police Jury and its individual Police Jurors' actions in denying Ferriday Villa the opportunity to provide low-income housing in Concordia Parish is part of a policy and custom by them to prevent federally-assisted-low-income persons from finding housing within Concordia Parish. This policy and custom has no articulable or protected basis or foundation.
The complaint pointed out that the Police Jury did not require an allegedly "similarly
Also, in March 2001, R. Craig Smith filed a complaint with the Louisiana Board of Ethics, alleging that Police Juror Cathy Darden considered the building project while employed by Macon Ridge, a competitor of Ferriday Villa. Although Ms. Darden had not voted on an allegedly similar project approved for Macon Ridge, Mr. Smith alleged that certain provisions of the Code of Governmental Ethics had been violated. The matter was closed, after the Board of Ethics found no violations.
Cathy Darden filed the instant matter in June 2002, seeking damages related to defamation, intentional infliction of severe emotional distress, and malicious prosecution and abuse of process. Mr. Smith and Ferriday Villa were named as the defendants. Subsequently, the defendants filed a "Motion to Strike and Motion for Summary Judgment, or Alternatively, for Partial Summary Judgment." Primarily, the defendants sought dismissal of the plaintiff's claim through operation of La.Code Civ.P. art. 971, which provides a mechanism for dismissal of a claim when it stems from an act in furtherance of the defendant's "right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue." The motions were denied by the trial court. The record provides no reasons for ruling.
The defendants filed a writ application with this court, seeking review of the trial court's denial. A panel of this court ordered that the matter be considered after full briefing and oral argument. The defendants present the following assignments of error for review:
Motion to Strike
At issue is whether La.Code Civ.P. art. 971 extends to all of the claims in the plaintiff's petition or whether it is limited to the defamation claim. If extended to all of the claims, the defendants contend, the plaintiff failed to sustain the burden of proof required of her in order to have her petition for damages survive under Article 971.
Enacted by the legislature to promote participation in matters of public concern,
Scope of Article 971
We first address the plaintiff's contention that Article 971 relates only to the defamation claim contained in the petition. In support of her assertion that the intentional infliction of emotional distress and malicious prosecution claims are not subject to the motion to strike, she points to an "Editor's Note" indicating that the Article is limited to defamation actions.
We find no merit in the plaintiff's contention that Article 971 is limited to a cause of action in defamation. While the reported cases on Article 971 are focused on defamation claims, the language of Article 971(A)(1) itself is broad, stating that it applies to "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition
Burden of Proof under Article 971
In order to succeed under Article 971, the movant must make a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue. In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim. Thomas v. City of Monroe Louisiana, 36,526 (La. App. 2 Cir. 12/18/02), 833 So.2d 1282. See also Baxter v. Scott, 37,092 (La.App. 2 Cir. 5/16/03), 847 So.2d 225, vacated on other grounds, 03-2013 (La.11/14/03), 860 So.2d 535.
We first consider the defendants' initial burden in this case, i.e. demonstrating that the subject matter of the suit stems from an action relating to free speech and in relation to a public issue. The defendants supported their motion to strike by submitting various exhibits. Notwithstanding these exhibits, reference to the plaintiff's petition alone demonstrates that the causes of action arise from acts in furtherance of the defendants' right of free speech and in connection with a public issue. This is true as the statements at issue in the plaintiff's suit relate to actions of the Police Jury and its individual Police Jurors; in particular, motives allegedly underlying the Police Jury's decision making process.
The Louisiana Supreme Court has explained that in order for a plaintiff to prevail on a defamation claim, he or she must prove: "(1) a false or 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." Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559. Furthermore insofar as a plaintiff is a public official, the supreme court has observed that:
Davis v. Borskey, 94-2399, p. 10-11 (La.9/5/95), 660 So.2d 17, 23.
We find no merit in the plaintiff's assertion that because the statements at issue were false, an element we do not consider here, and related to a matter that would affect public confidence in her or injure her in her occupation, the statements were defamatory per se. Due to this, she contends, she was not required to demonstrate malice, either actual or otherwise. In support of this argument she references an excerpt from the fourth circuit's opinion in Sassone v. Elder, 601 So.2d 792 (La.App. 4 Cir.1992), reversed, 626 So.2d 345 (La.1993), wherein it discussed the definition of defamatory words and those that are defamatory per se. However, this concept is inapplicable to the case at bar as its discussion of malice is not in the context of a public official. The supreme court's direction in this regard is clearly articulated in Davis, 660 So.2d 17. Thus, in order for her defamation
The evidence presented by the plaintiff does not indicate that she would be able to do so. Notably, there is an absence of evidence indicating that the defendants' statements were made with a reckless disregard for the truth. Recall that, according to Davis, "a public official plaintiff must clearly prove that the defendant actually knew the published statements were false or that the defendant was highly aware that the statements were probably false." Davis, 660 So.2d at 23. Ms. Darden only contests the accuracy of the statements made and does not offer proof indicating that she would be able to satisfy this considerable burden. Accordingly, the motion to strike was erroneously denied in this regard.
Intentional Infliction of Emotional Distress
Turning to the cause of action for intentional infliction of emotional distress, the plaintiff would be required to demonstrate:
Our review of the parties' respective exhibits in support of and in opposition to the motion to strike indicates that the plaintiff has failed to demonstrate a probability of success as to this claim. In her affidavit, Ms. Darden explained that:
Even if the court were to accept that the defendants' conduct was "extreme and outrageous" or that the plaintiff's emotional distress was severe, issues we need not reach, there is no evidence that the defendants desired to inflict such emotional distress or knew that it was likely to follow. Again, the plaintiff did not sustain her burden of proof as to this cause of action.
Finally, on her claim for malicious prosecution, the plaintiff would be required to prove:
Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).
Again, Ms. Darden's evidence fails to demonstrate the presence of "malice" in the filing of the ethics complaint or the federal lawsuit. While the other matters were, in fact, resolved in the plaintiff's favor, the above standard requires the presence of malice.
As we have concluded that the plaintiff's causes of action are subject to the motion to strike and that she failed to rebut the burden of proof sustained by the defendants in this case, we find that the trial court was in error in failing to grant the motion to strike.
As can be seen above, La.Code Civ.P. art. 971(B) indicates that "a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney's fees and costs." (Emphasis added).
For the foregoing reasons, the defendants' writ application is granted. We grant the motion to strike, dismissing the plaintiff's petition with prejudice. Attorney's fees in the amount of $5,000 and all costs of this matter are assessed to the plaintiff, Cathy Darden.
COOKS, J., concurs in part in the result, and dissents, in part.
COOKS, J., concurs in part in the result, and dissents in part.
I concur with the result reached by the majority opinion, however, I differ with the opinion in two respects. I would not have awarded attorney's fees to Mr. Smith and FVP under La.Code Civ.P. art. 971 or, alternatively, I would have decided the case by way of the motion for summary judgment. The inquiry by the court under La.Code Civ.P. art. 971 is whether the "plaintiff has established a probability of success on the claim" while the test for summary judgment is whether there are any genuine issues of material fact. Both procedural vehicles require an examination of the underlying elements of proof required to support the cause of action. On its face, it may appear only a question of semantics. However, such is not the case, according to the result reached by the majority opinion. La.Code Civ.P. art. 971(B) provides, in relevant part:
By mandating the award of attorney's fees to a prevailing defendant, in every case, as the majority has done, we risk penalizing individuals for asserting their constitutional right to petition the court for redress of an alleged grievance. Although Ms. Darden did not present enough evidence to sustain her cause of action, she had every right to defend her character and reputation against a perceived attack. She had a reasonable belief in the rightness of her cause evidenced by the fact that both the federal petition and the ethics complaint were resolved in her favor. I would find the award of attorney's fees a discretionary matter based on the individual facts of the case and, in this case, I would have declined an award. This is the view of the Fourth Circuit in Stern v. Doe, 2001-0914 (La.App. 4 Cir. 12/27/01), 806 So.2d 98. In Stern, a high school student was mistakenly featured on a television program as a truant. He sued
10. In the Ferriday Villa suit, R. Craig Smith and the Ferriday Villa Partnership stated that the decision by petitioner to delay awarding the building permit to defendants was "racially motivated" (paragraph 21), "based solely on discriminatory policies towards individuals" (paragraph 25), that the actions were "arbitrary and capricious" (paragraph 26) and was "racially motivated" (paragraph 27). (Ferriday Villa Partnership lawsuit attached hereto).