Alost v. Lawler

326 So.3d 1255

Terence ALOST, M.D.

v.Danny LAWLER, Danny Lawler Enterprises, L.L.C., and Willis-Knighton Medical Center

NO. 2020 CW 0832

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: JUNE 02, 2021

Rehearing Denied July 1, 2021

T. Jordan Alost, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Terence Alost, M.D.

Scott L. Sternberg, M. Suzanne Montero, Michael S. Finkelstein, New Orleans, Louisiana, Counsel for Defendants/Appellees, Danny Lawler and Danny Lawler, Enterprises, LLC

BEFORE: McDONALD, THERIOT, AND WOLFE, JJ.

THERIOT, J.

Terence Alost, M.D., appeals the Nineteenth Judicial District Court's December 17, 2019 judgment granting Danny Lawler and Danny Lawler Enterprises, L.L.C.'s special motion to strike and dismissing Terence Alost, M.D.'s petition against these defendants with prejudice. For the following reasons, we convert this appeal to an application for supervisory writs, which we grant. We deny Danny Lawler and Danny Lawler Enterprises, L.L.C.'s motion to dismiss the appeal.

FACTS AND PROCEDURAL HISTORY¹

Terence Alost, M.D., ("Dr. Alost") filed a petition for damages against Danny Lawler, Danny Lawler Enterprises, L.L.C. (collectively, "the Lawler defendants"), and Willis-Knighton Medical Center ("Willis-Knighton") on January 30, 2018. Dr. Alost's petition, which primarily asserted defamation-based claims, was filed after the Lawler defendants published an article in the October 20-26, 2017 issue of The Inquisitor, a publication owned and operated by Mr. Lawler. The article, titled "Untold horror stories of the WK Bossier ER," was written by Mr. Lawler. In the article, Mr. Lawler alleged that his father, Joe Lawler, had received poor service from Dr. Alost in the Willis-Knighton emergency room. Mr. Lawler mentioned Dr. Alost several times in the article and wrote about other people's negative experiences in the same emergency room.

Willis-Knighton filed a dilatory exception of improper cumulation of actions and a declinatory exception of improper venue. The Lawler defendants filed a declinatory exception of improper venue, a motion for forum non conveniens , and a dilatory exception of improper cumulation of actions. On May 4, 2018, the trial court signed a judgment that granted Willis-Knighton's exceptions of improper cumulation of actions and improper venue, as well as the Lawler defendants’ exception of improper venue and motion for forum non conveniens. Following Dr. Alost's appeal of the May 4, 2018 judgment, this court affirmed the portion of the judgment granting Willis-Knighton's exception of improper venue and found Willis-Knighton's exception of improper cumulation to be moot. Alost v. Lawler , 2018-1271 (La. App. 1 Cir. 5/8/19), 277 So.3d 329, 334-35. As to the Lawler defendants, this court reversed the portions of the May 4, 2018 judgment that granted the Lawler defendants’ exception of improper venue and motion for forum non conveniens. The matter was remanded to the trial court for further proceedings. Id. at 335-37.

On June 21, 2019, the Lawler defendants answered Dr. Alost's petition. The Lawler defendants denied that the complained of speech was defamatory and urged a special motion to strike pursuant to La. Code Civ. P. art. 971, peremptory exceptions of no cause of action and no right of action, and a dilatory exception of vagueness. On June 26, 2019, the trial court signed an order suspending discovery in this matter pending a hearing on the Lawler defendants’ special motion to strike.

On September 11, 2019, Dr. Alost filed a "Motion to Strike, objections, and Motion for Specified Discovery and Subpoenas." In this motion, Dr. Alost alleged that Mr. Lawler's affidavit in support of the Lawler defendants’ special motion to strike violated the Louisiana Code of Evidence. Dr. Alost asked the trial court to strike any testimony in the affidavit that violated the rules of evidence and to order the Lawler defendants to disclose the identity and address of the declarant(s) of Mr. Lawler's offered hearsay. Dr. Alost also sought the release of Joe Lawler's medical records and alleged that a hearing on the special motion to strike without such information "would be an unconstitutional application of the laws infringing upon Dr. Alost's right to due process and his access to the courts."

A hearing on the special motion to strike was held on October 7, 2019. On October 9, 2019, the trial court issued a ruling on the special motion to strike in which it stated that the article written by Mr. Lawler "involved a matter of public concern" and further stated that "the court has seen no evidence to suggest that [Mr.] Lawler acted with actual malice in publishing the newspaper article at issue[.]"² On December 17, 2019, the trial court rendered a judgment granting the Lawler defendants’ special motion to strike, dismissing with prejudice Dr. Alost's petition, and ordering Dr. Alost to pay attorney's fees in the amount of $3,000.00.

On January 3, 2020, the Lawler defendants filed a motion for limited new trial, seeking an increase in the award of attorney's fees. On January 13, 2020, Dr. Alost filed a motion for new trial. On March 6, 2020, Dr. Alost filed a motion for appeal. The trial court signed an order granting the appeal on March 12, 2020. On September 24, 2020, the Lawler defendants answered Dr. Alost's appeal, seeking an increase in the amount of attorney's fees awarded.

Also on September 24, 2020, the Lawler defendants filed with this court a motion to dismiss Dr. Alost's appeal for lack of jurisdiction, asserting that the trial court had granted the Lawler defendants’ motion for limited new trial, but that Dr. Alost's motion for new trial was still pending. On November 5, 2020, this court granted the Lawler defendants’ motion to dismiss appeal, finding the appeal to be premature because of the pending motion for new trial filed by Dr. Alost. Additionally, on November 18, 2020, this court amended its order dismissing Dr. Alost's appeal to also dismiss the Lawler defendants’ answer to the appeal.

On December 2, 2020, Dr. Alost filed an application for rehearing with this court, asserting that his pending motion for new trial had been denied by the trial court on November 16, 2020 and seeking to have his appeal reinstated. Accordingly, on December 30, 2020, this court granted Dr. Alost's application for rehearing and reinstated the appeal.

ASSIGNMENT OF ERROR

Dr. Alost asserts one assignment of error:

(1) The trial court erred by refusing to accept testimony after ordering such, implicitly denying Alost's motion to strike, implicitly denying plaintiff's constitutional challenge to the special motion to strike in combination with medical privacy laws, and granting the defendants’ special motion to strike.

STANDARD OF REVIEW

A ruling on a special motion to strike is reviewed de novo on appeal to determine whether the trial court was legally correct. The appellate court gives no special weight to the trial court findings, but exercises its constitutional duty to review questions of law and renders a judgment on the record. Breen v. Holmes , 2016-1591 (La. App. 1 Cir. 12/7/17), 236 So.3d 632, 636, writ denied, 2018-0049 (La. 3/2/18), 269 So.3d 708.

DISCUSSION

Appellate Jurisdiction

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Advanced Leveling & Concrete Solutions v . Lathan Company, Inc., 2017-1250 (La. App. 1 Cir. 12/20/18), 268 So.3d 1044, 1046. We have previously had occasion to explain that a trial court's judgment granting a defendant's special motion to strike under La. Code Civ. P art. 971 constitutes an interlocutory judgment that is reviewable in the appeal taken from the subsequent final and appealable judgment granting the defendant attorney fees as the prevailing party on the special motion to strike. Samuel v. Remy , 2015-0464 (La. App. 1 Cir. 8/31/16), 2016 WL 4591885 at *5 (unpublished), writ denied, 2016-1785 (La. 11/29/16), 211 So.3d 387.

Although the trial court's December 17, 2019 judgment awarded attorney's fees, the Lawler defendants filed a motion for limited new trial on the issue of attorney's fees. Further, the December 17, 2019 judgment lacks a designation under La. Code Civ. P. art. 1915(B). See Samuel , 2016 WL 4591885 at *5 (noting the general proposition that, absent a designation under La. Code Civ. P. art. 1915(B), interlocutory judgments rendered during the progression of a suit can only be appealed with the final judgment in the suit); see also Davis v. Benton, 2003-0851 (La. App. 1 Cir. 2/23/04), 874 So.2d 185, 188 n.1. Accordingly, the December 17, 2019 judgment is an interlocutory judgment.

The proper procedural vehicle to contest an interlocutory judgment is an application for supervisory writs. We have authority to exercise our supervisory jurisdiction and treat the appeal of this interlocutory judgment as an application for supervisory writs. See State in the Interest of J.C., 2016-0138 (La. App. 1 Cir. 6/3/16), 196 So.3d 102, 107. The decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts. Stelluto v. Stelluto , 2005-0074 (La. 6/29/05), 914 So.2d 34, 39.

An application for supervisory writs must be filed within thirty days of the notice of judgment. Tower Credit, Inc. v. Bradley, 2015-1164 (La. App. 1 Cir. 4/15/16), 194 So.3d 62, 65 ; see also Rule 4-3, Uniform Rules, Courts of Appeal. In this case, notice of judgment denying Dr. Alost's motion for new trial was mailed on December 3, 2020. The appeal was reinstated on December 30, 2020. Because Dr. Alost's appeal was reinstated within thirty days of the mailing of the judgment denying his motion for new trial, we exercise our discretion to convert Dr. Alost's appeal to an application for supervisory writs and consider the merits of Dr. Alost's appeal under our supervisory jurisdiction. See KAS Properties, LLC v. Louisiana Bd. of Supervisors for...