Aymond v. Dupree, 05-1248.

Citation928 So.2d 721
Decision Date12 April 2006
Docket NumberNo. 05-1248.,05-1248.
PartiesGregory R. AYMOND v. Rich DUPREE.
CourtCourt of Appeal of Louisiana (US)

Ronald J. Fiorenza, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, Henry Howard Lemoine, Jr., Lemoine & Wampler, Pineville, LA, for Defendant/AppelleeRich Dupree.

Gregory R. Aymond, Alexandria, LA, (In Proper Person).

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.

THIBODEAUX, Chief Judge.

Gregory Aymond, the former attorney for Rapides Parish Waterworks District Number 3, filed a suit for defamation and slander against Rich Dupree, a commissioner of the water board, alleging that Dupree made false statements about him causing the board to terminate his attorney's position with the waterworks district. The commissioner filed a special Motion to Strike Pursuant to La.Code Civ.P. art. 971. The trial court granted the commissioner's motion and dismissed Aymond's claims. Aymond appeals. For the following reasons, we affirm the judgment of the trial court.

I. ISSUES

We must decide:

(1) whether the trial court erred in applying La.Code Civ.P. art. 971 and in dismissing Aymond's claims pursuant to the special motion to strike;

(2) whether the trial court erred in hearing Dupree's special motion to strike more than thirty days after service of the motion;

(3) whether the trial court erred in granting the special motion to strike before hearing all arguments on Aymond's motion for discovery; and,

(4) whether the trial court denied Aymond procedural due process in granting the special motion to strike.

II. FACTS AND PROCEDURAL HISTORY

The plaintiff, Gregory R. Aymond, was the attorney for Rapides Parish Waterworks District Number 3 for approximately sixteen years. The defendant, Rich Dupree, was a commissioner on the Board of Rapides Parish Waterworks District Number 3 (hereinafter "Water Board" or "Board"). In April of 2004, Aymond was assigned the task of investigating a water district line run across the private property of Mayor Roy Hebron of the Town of Ball. The line was allegedly run without state approval, without servitudes, and at no charge to the mayor, expending approximately $5,000.00 of public funds. Aymond investigated the issue, took photographs and statements, and submitted a report to the Water Board in May 2004, resulting in a Board vote to turn the matter over to the legislative auditor, State Ethics Board, and the Rapides Parish District Attorney. The District Attorney's office subsequently informed the Water Board that it must institute a civil proceeding to recoup the public funds expended on laying the water line.

On July 13, 2004, when the employment contract of Aymond, the Water Board's attorney, came up for annual renewal, the Board voted, with a six to three majority vote, not to renew the employment contract of Aymond, thereby terminating his position as attorney for the Water Board. Aymond asserts that the defendant, Dupree, made false statements and influenced two crucial votes against Aymond, those of commissioner Thurman Kelly and of the newly-elected Board President, Otha Hailey, whose votes in the opposite direction would have resulted in Aymond keeping his position as the Water Board's attorney. However, Aymond provides details only as to events influencing the vote of Kelly.

A couple of hours after the vote on July 13, 2004, Aymond called Kelly seeking an explanation for the Board's vote against renewing Aymond's employment contract. According to Aymond, in addition to being on the Water Board together, Kelly and Dupree were City of Pineville employees. In that capacity, Dupree was Kelly's supervisor. Aymond alleges that Kelly told him on the phone that for three weeks preceding the Board's vote, Dupree had solicited Kelly's vote to terminate Aymond's contract. However, Kelly subsequently signed an affidavit stating that at no time did Dupree attempt to solicit Kelly's vote. Aymond further alleges that Kelly told Dupree that he would only vote against Aymond if Dupree and Hailey first met with Aymond to discuss some of Kelly's concerns. According to Aymond, Kelly stated that Dupree called him on the way to the Water Board meeting and informed him that he had met with Aymond to discuss Kelly's concerns but that Aymond informed Dupree that Aymond "would not change." Aymond secretly taped this conversation with Kelly and planned to play the tape at the discovery hearing.

On July 13, 2004, Aymond called Dupree and secretly taped that conversation as well. Aymond alleges that during the conversation Dupree said Aymond's termination had nothing to do with his legal abilities, but rather was for failing to make the Mayor Hebron waterline investigation go quietly away. Aymond further alleges in his amending petition that on July 27, 2004, at a public meeting, Dupree announced that he had informed a local newspaper that he did not have confidence in Aymond's control of matters involving the Water Board and that Aymond's termination had nothing to do with Mayor Hebron.

Dupree asserts that during his conversation with Aymond, he told Aymond that he was not satisfied with his handling of certain assignments, nor with the manner in which Aymond had "dressed down" fellow commissioners in open meetings. Dupree also asserts that he told Aymond that there was an overall feeling among Board members that a change needed to be made to move the Board forward.

Aymond filed a suit for defamation and slander in Pineville City Court against Dupree on March 2, 2005. He alleged that Dupree's statement to Kelly regarding Aymond's refusal to change, as well as his subsequent public statement regarding the reason for Aymond's termination, were false statements and were intended to publicly discredit Aymond and to maliciously embarrass him.

Pineville City Court Judge J. Phillip Terrell, Jr. recused himself due to an association with Aymond, and Judge Robert P. Jackson was appointed ad hoc to hear the case.

In April 2005, Aymond filed a Motion to Strike certain affirmative defenses; Dupree filed a special Motion to Strike Pursuant to La.Code Civ.P. art. 971; and Aymond filed a Motion for Discovery Under Louisiana Code of Civil Procedure Article 971 and Opposition to Application of Article 971 and For Attorney Fees and For Sanctions. All three motions were set for hearing on July 12, 2005.

Dupree's special Motion to Strike Pursuant to La.Code Civ.P. art. 971 attached the affidavits of Dupree and Kelly. Dupree's affidavit states that he did express his opinion that Aymond's contract should not be renewed at the July 13, 2004 meeting; that his statements were made on matters pertaining to a public issue or an issue of public interest and were made without malice; that he had the discretion to vote for or against renewing the employment contract; that his vote and opinions were an exercise of that discretion; that any statement he made regarding the effectiveness of Aymond was true or substantially true; and that he at no time solicited Kelly to vote against Aymond's renewal as the Board's attorney. As previously indicated, Kelly's affidavit also states that at no time did Dupree attempt to solicit him to vote against renewing the annual contract of the Board's attorney, Aymond.

Aymond did not file any opposing affidavits. He alleges that he was prevented from doing so because the counsel for the Water Board and the counsel for the City of Pineville, respectively, instructed the Board members and Kelly not to talk with him.

III. LAW AND DISCUSSION

Because the granting of a special Motion to Strike Pursuant to La.Code Civ.P. art. 971 involves issues of law, we will conduct a de novo review of the trial court's application of the law. See also, Thomas v. City of Monroe Louisiana, 36,526 (La.App. 2 Cir. 12/18/02), 833 So.2d 1282. Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery. Trahan v. State ex rel. Dept. of Health and Hospitals, 04-743 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245; Moak v. Ill. Cent. R.R. Co., 93-783 (La.1/14/94), 631 So.2d 401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990). Such discretion will not be disturbed on appeal absent a clear showing of abuse. Moak, 631 So.2d 401.

La.Code Civ.P. art. 971 Special Motion to Strike

Aymond contends that the trial court erred in granting Dupree's special Motion to Strike Pursuant to La.Code Civ.P. art. 971, and that Article 971 is not applicable to the claims of Aymond. Dupree asserts that his special Motion to Strike Pursuant to La.Code Civ.P. art. 971 was properly granted where the case involved the presence of protected free speech and a connection to a public issue. We agree.

The special motion to strike, governed by La.Code Civ.P. art. 971, provides in pertinent part:

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.

. . . .

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...

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