Roper v. John Chandler Loupe & the Consoldated Governing Body of Bation Rouge & the Parish of E. Baton Rouge

MARY E. ROPER v. JOHN CHANDLER LOUPE AND THE CONSOLDATEDGOVERNING BODY OF THE CITY OF BATION ROUGEAND THE PARISH OF EAST BATON ROUGE

2015 CA 1956

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

October 28, 2016

NOT DESIGNATED FOR PUBLICATION

On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana

Trial Court No. 638,786

The Honorable Timothy E. Kelley, Judge Presiding

Dale R. Baringer

Benjamin J. B. Klein

Geoffrey C. Hingle, Jr.

Baton Rouge, Louisiana

Attorneys for Appellant/Plaintiff,

Mary E. Roper

Murphy J. Foster, III

Jennifer D. Sims

Jacob E. Roussel

Baton Rouge, Louisiana

Attorneys for Appellees/Defendants,

John Chandler Loupe and the

Governing Body of the City of

Baton Rouge and Parish of East

Baton Rouge

BEFORE: PETTIGREW, MCDONALD, AND DRAKE, JJ.

DRAKE, J.

Mary E. Roper, the former Parish Attorney for East Baton Rouge Parish, filed a suit for defamation against John Chandler Loupe and the Consolidated Governing Body of the City of Baton Rouge and the Parish of East Baton Rouge (City-Parish), alleging that Loupe, a member of the Metropolitan Council for the City-Parish (Metro Council), made false statements about her causing the Metro Council to terminate her as Parish Attorney. The defendants filed a Special Motion to Strike pursuant to La. C.C.P. art. 971. The trial court granted the defendants' motion and dismissed Roper's claims. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On April 22, 2015, Roper filed suit against Loupe and the City-Parish for defamation. The petition details animosity between Loupe and Roper beginning in November of 2008. The trial court ruled that any allegations concerning activity prior to April 22, 2014, one-year before the filing of the petition, were prescribed as tortious claims, which included paragraphs 6 through 109 of Roper's petition. On appeal, Roper details events between Loupe and her between 2008-2010 as evidence supporting her claim that in 2014, Loupe acted out of malice and in retaliation for Roper's failure to comply with Loupe's repeated requests that Greg Rome be given a position in the Parish Attorney's office.

Roper served as the Parish Attorney from August 2008 through September 2014, at which time she was removed from that position following a public hearing and a vote of the Metro Council. Roper filed this defamation lawsuit seeking damages for the allegedly defamatory statements made by Loupe during a Metro Council meeting held on September 10, 2014, which led to her removal as the Parish Attorney. Roper alleged that the statements by Loupe were made duringthe Metro Council meeting and were aired on public television during that meeting.

In response to the defamation suit, the defendants filed a Special Motion to Strike pursuant to La. C.C.P. art. 971, seeking dismissal of Roper's claims and requesting attorney's fees and costs. Roper opposed the Special Motion to Strike and attached an affidavit and exhibits to her opposition. The trial court set the hearing on the Special Motion to Strike for July 6, 2015.

On June 22, 2015, Roper requested that subpoenas be issued to five City-Parish officials requiring them to appear as witnesses at the July 6, 2015 hearing. In response, the defendants filed a Motion to Quash, claiming that pursuant to La. C.C.P. art. 971(A)(2), the trial court could only consider the pleadings and supporting and opposing affidavits, not live testimony. Roper then sought to continue the July 6, 2015 hearing to "allow for limited discovery", which included taking the depositions of the subpoenaed witnesses. The trial court granted the Motion to Quash and denied the Motion to Continue the hearing.

The defendants also filed a Motion to Strike Exhibits/Attachments,¹ pertaining to numerous exhibits attached to the affidavit of Roper filed in Opposition to the Special Motion to Strike. At the July 6, 2015 hearing, the trial court granted the Motion to Strike Exhibits/Attachments. The trial court also granted the Special Motion to Strike and ordered that Roper pay the attorney's fees and costs of defendants. A judgment to that effect was signed on July 29, 2015.

Roper filed a motion for new trial, which was denied by the trial court on August 18, 2015. Roper appeals from the July 29, 2015 judgment and the denial of the motion for new trial.

ALLEGED ERRORS

Roper claims that the trial court erred in granting Defendants' Special Motion to Strike and dismissing her claims; granting Defendants' Motion to Quash; denying Plaintiff's Motion for Continuance to allow for Limited Discovery; and granting Defendants' Motion to Strike Exhibits/Attachments.

LAW AND DISCUSSION

Special Motion to Strike

The special motion to strike is governed by La. C.C.P. art. 971, which provides:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.

B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

C. (1) The special motion may be filed within ninety days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper.

(2) If the plaintiff voluntarily dismisses the action prior to the running of the delays for filing an answer, the defendant shall retain the right to file a special motion to strike within the delays provided by Subparagraph (1) of this Paragraph, and the motion shall be heard pursuant to the provisions of this Article.

(3) The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.

D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay ofdiscovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.

F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:

(1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:

(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.

(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.

(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.

(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(2) "Petition" includes either a petition or a reconventional demand.

(3) "Plaintiff includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.

(4) "Defendant" includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

The granting of a special motion to strike presents a question of law. Appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Thinkstream, Inc. v. Rubin, 2006-1595 (La. App. 1 Cir. 9/26/07), 971 So. 2d 1092, 1100, writ denied, 2007-2113 (La. 1/7/08), 973 So. 2d 730. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Thinkstream, 971 So.2d at 1100. Because the granting of a Special Motion to Strike pursuant to La. C.C.P. art. 971 involves issues of law, appellate courts conduct a de novo review of the trial court's application of the law. Aymond v. Dupree, 2005-1248 (La. App. 3 Cir. 4/12/06), 928 So. 2d 721, 726, writ denied, 2006-1729 (La. 10/6/06), 938 So. 2d 85.

The intent of Article 971 is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process. Lamz v. Wells, 2005-1497 (La. App. 1 Cir. 6/9/06), 938 So. 2d 792, 796. Article 971 was enacted by the legislature as a procedural device to be used early in legal proceedings to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Thinkstream, 971 So. 2d at 1100; Aymond, 928 So. 2d at 727. Accordingly, Article 971 provides that a cause of action against a person arising from any act in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a...