Thomas v. City of Monroe Louisiana
| Decision Date | 18 December 2002 |
| Docket Number | No. 36,526-CA.,36,526-CA. |
| Citation | 833 So.2d 1282 |
| Parties | Perry THOMAS, Plaintiff-Appellant v. The CITY OF MONROE LOUISIANA, The Monroe Police Department, Noe Enterprises, Inc., and Noe Corporation, L.L.C., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Louis Granderson Scott, for Plaintiff-Appellant.
Thomas V. Gardner, Jr., Monroe, Nanci S. Summersgill, for Defendant-Appellee, City of Monroe, Monroe Police Department.
Hudson, Potts & Bernstein, by: William T. McNew, A. Jill Futch, Ashley S. Burch, Monroe, for Defendant-Appellee, NOE Corporation, L.L.C.
Before STEWART, GASKINS and CARAWAY, JJ.
The plaintiff, Perry Thomas, appeals a decision by the trial court granting a special motion to strike filed on behalf of one of the defendants, NOE Corporation, L.L.C., dismissing the plaintiff's claims of defamation and violation of his civil rights. The dismissal was based upon the trial court's refusal to consider affidavits submitted by the plaintiff in opposition to the special motion to strike. For the following reasons, we affirm the trial court judgment.
The plaintiff is the compliance director for the Planning and Urban Development Department, EEO Compliance Division, of the City of Monroe. According to a report by the Monroe Police Department, on November 25, 2000, an officer was approached by a woman leaving a movie theater in Monroe. She complained that, while watching a children's movie, "How The Grinch Stole Christmas," she saw a man sitting alone, stroking his genitals, but not exposing them. The offender pointed out by the woman was the plaintiff. The woman left before the police could get her name.
The officer approached the plaintiff, advised him of his Miranda rights, and questioned him about the incident. According to the report, the plaintiff denied the accusation, became very emotional, and then appeared to become ill. The plaintiff was transported to the police substation for evaluation of his medical condition.
According to the officer, once inside the station, the plaintiff collapsed to his knees and said he was a "sick man." The officer called an ambulance. The plaintiff stated that he did not need an ambulance and left the station before it arrived.
A complaint report was generated by the police department, detailing the incident. This report was obtained by a local television station, KNOE TV 8. On November 27, 2000, the station aired a report about the complaint. Another story was broadcast on November 28, 2000. The story stated that meetings were being held by city officials to decide what action to take regarding the allegations against the plaintiff. The second story mentioned a 1989 incident in which the plaintiff was cited by the Northeast Louisiana University Police with battery on police officers, resisting arrest, and trespassing.
On November 26, 2001, the plaintiff filed suit against the City of Monroe, the Monroe Police Department, and NOE Corporation L.L.C. (NOE).1 The plaintiff claimed that he informed NOE that the police complaint was untrue. However, NOE aired the story, based on the police report, without verifying the existence of the complainant. The plaintiff contended that the complainant did not exist. He asserted that the television station's actions were designed to embarrass, humiliate, destroy, hurt, and cause economic hardship to him. He also alleged that the station's actions were in accordance with a long-standing tradition to seek removal of "African-Americans from positions of responsibility by casting doubt upon their abilities, motives, and character." He claimed that the accusations against him were unwarranted, false, malicious, and harmful and that the reports generated gossip, ridicule, and mistrust toward him.
The City of Monroe and the Monroe Police Department filed an answer denying the plaintiff's allegations. NOE filed a special motion to strike under La. C.C.P. art. 971. In the motion, NOE asserted that the news stories concerning the plaintiff were broadcast in furtherance of the station's right to free speech and concerned issues of public interest in connection with a public official. NOE argued that the plaintiff was required to establish with pleadings and affidavits that he has a probability of success on his claims of defamation. If he cannot show a probability of success, NOE argued that the plaintiff's claim should be dismissed and attorney fees awarded to it.
In its memo in support of the special motion to strike, NOE asserts that the plaintiff is a public official who must meet the "reckless disregard" standard in order to prove defamation. NOE asserts the qualified privilege for public reports based on public records, arguing that even if the police report is not true, NOE could rely on the report as factually correct and the plaintiff could not base a defamation claim on the broadcast of the contents of the report. According to NOE, the station merely reported a complaint alleging misconduct and the news report did not state that the police report was true.
Attached to the special motion to strike was the affidavit of the reporter, Ken Booth, stating that he had no reason to believe that the police report was not true. He also stated the report was obtained pursuant to an established policy of reporting matters on file as a matter of public record. Attached to the affidavit was a copy of the police report in this incident, a copy of the report in the 1989 incident at Northeast Louisiana University, and a transcript of the televised news stories at issue in this case.
The hearing on the motion was held on Monday, March 18, 2002. On Friday, March 15, 2002, the plaintiff filed three affidavits in opposition to the special motion to strike. The plaintiff's actual opposition to the special motion to strike was not filed until the day of the hearing. He urged that he is not a public official and therefore, was not subject to the higher standard of proof under New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).2 However, even if the higher standard applied, he claimed that there was a reckless disregard for the truth by NOE. Basically, he alleged that there were numerous factors indicating that the police report was false and that NOE took no measures to verify the report.
There is no transcript of the hearing on the special motion to strike. The minutes show that the matter was taken up by the trial court which refused to consider the affidavits filed by the plaintiff. On May 8, 2002, the trial court signed an order granting the defendant's special motion to strike, dismissing the plaintiff's claims against NOE with prejudice.3 The trial court did not give written reasons for the judgment. The plaintiff appealed, claiming that the trial court erred in failing to consider his affidavits and erred in granting the special motion to strike in favor of NOE.
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, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
B. In any action subject to Paragraph A of this Article, a prevailing defendant on a special motion to strike shall be entitled to recover reasonable attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney's fees and costs to a plaintiff prevailing on the motion.
C. The special motion may be filed within sixty days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper. 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 of discovery 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...
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