Freeman v. Cooper

• Citation: 414 So.2d 355
• Decision Date: 17 May 1982
• Docket Number: No. 81-C-0169,81-C-0169
• Parties: A. D. FREEMAN v. John T. COOPER.
• Court: Supreme Court of Louisiana

Page 355

414 So.2d 355

A. D. FREEMAN v. John T. COOPER.

No. 81-C-0169.

Supreme Court of Louisiana.

May 17, 1982.

John T. Cooper, of Cooper & Hingle, New Orleans, for plaintiff-applicant.

Charlotte A. Hayes, and A. D. Freeman, of Satterlee, Mestayer & Freeman, New Orleans, for defendant-respondent.

LEMMON, Justice.

In this litigation between two attorneys, plaintiff seeks recovery of damages resulting from allegedly defamatory statements made in a brief filed by defendant in earlier domestic proceedings. After a trial on the merits, the trial court awarded plaintiff damages in the amount of $1,500. The court of appeal affirmed, holding that the statements were defamatory and rejecting the defenses of truth and of qualified privilege. The court noted that the latter defense was not available, because the statements lacked probable cause and were made in a malicious manner, since they were unrelated to any legal point at issue. La.App., 390 So.2d 1355. We granted defendant's application for certiorari. La., 397 So.2d 802.

I.

In the earlier domestic litigation, plaintiff was the attorney for the defendant's wife, and defendant represented himself. Defendant began that litigation by filing suit for separation, in which he alleged fault on the part of his wife. Ancillary to that proceeding, the trial court ordered defendant to pay alimony pendente lite and child support to his wife and awarded defendant weekend visitation privileges with his son.

During the course of this litigation, the wife, without advising defendant, moved to Illinois with her son. When she later filed a motion for an increase in alimony pendente lite and child support, defendant countered with a motion for a decrease in alimony and child support and additionally sought to adjust the visitation rights previously granted by the court. After a hearing on the motions, the trial court denied the wife's demand for an increase in alimony, but awarded defendant visitation rights for a period of eight weeks during the summer.

In about April, 1978, defendant obtained the dismissal of his separation suit and then discontinued regular alimony and child support payments, on the basis that the support order fell with the dismissal of the suit. One week before defendant's son was to return to Louisiana for summer visitation, the wife's attorney (who is the plaintiff in this defamation case) filed a motion requiring defendant to show cause why the unpaid alimony and child support should not be made executory and defendant held in contempt. In connection with the motion, the wife's counsel obtained an ex parte order postponing the child's visit until defendant reinstated alimony and support payments or until the rule was tried. The motion alleged that the wife, without the child support and alimony withheld by defendant, was in necessitous circumstances and lacked the funds to buy the child clothes necessary for the eight-week trip and had no automobile or money even to transport the child to the airport.

Defendant moved the court to vacate the order and to reinstate visitation privileges (which relief the court eventually granted). In the course of the trial of that motion and the motion to make arrearages executory, defendant filed a memorandum, in which he made the following statements, which are the basis of this defamation action:

"Apparently Mr. Freeman and Mrs. Cooper feel that they are above and beyond the law and even after having been slapped down by the Trial Court, the Court of Appeal and the Supreme Court surreptitiously slipped before your Honor a Rule Nisi for contempt, etc. knowing that your Honor had only recently been sworn in and could not know any of the background in regard to this matter. Apparently from my discussion with your Honor at an earlier date, Mr. Freeman did not bother to advise you of the true status of this matter in fear that your Honor would tell him that even though he may not believe in the Judicial system of our State, that your Honor does and refuse to sign the order. It is respectfully submitted that the behavior of Mr. Freeman is contemptuous to the dignity of this Honorable Court.

"It is further respectfully submitted, that even in the rule filed by Freeman, he again lied to the court in regard to the visitation privileges for in his Rule Nisi, he stated that Ann Trenchard Cooper could not even transport Mr. Cooper's son to the airport serving the Charleston, Illinois area when same is only, by actual measurement, 5.7 miles from the doorstep of the house in which she is living in open and notorious adultery. Further, in the deposition given by Mrs. Cooper under oath, she admitted that she had the use of the Lincoln Continental automobile owned by her co-respondent in adultery...."

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"In respect to the attempt of Freeman and Mrs. Cooper to now attempt to breathe life into a case which has been held to be dismissed by the Supreme Court, it is respectfully submitted that all interlocutory decrees fall when the cause of action is dismissed. It is respectfully submitted that no part of the case could survive in the face of the final dismissal of same by the Supreme Court of the State of Louisiana. To assert any different theory reminds counsel of the old addage [sic] about "just being a little bit pregnant".

"Counsel has not been able to find any case in Louisiana in regard to this matter and submits that the reason therefor is that it is such "hornbook" law that no one has heretofore asserted that theory. Of course, Freeman and Mrs. Cooper being outside of the law do not concern themselves about that."

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"In stating the above, there is not denial of any rights of Mrs. Cooper or of the minor John T. Cooper, III. Mrs. Cooper has a right to file her own lawsuit for alimony pendente lite and child support or, to file a rule for alimony pendente lite and child support in the case which is active and in which Mrs. Cooper is being sued for open and notorious adultery, that case bearing Docket No. 209-883 of this Honorable Court. Apparently Freeman and Mrs. Cooper have some fetish about hanging on to a dead lawsuit rather than go forward on their own and exercise whatever rights they have under the law. It is respectfully submitted that that is what they should have done in the first place rather than surreptitiously attempt to take advantage of your Honor's recent ascension to the bench."

Plaintiff then instituted the present defamation action, asserting that the emphasized language is defamatory and "impugn(es) and malign(s) (his) personal honesty and disreputes his professional reputation."

II.

A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community. Restatement (Second) of Torts § 559 (1977). Defamatory communications violate one's right to a good reputation and give rise to a cause of action to recover damages because of the violation.

The disparaging remarks in this case were prejudicial to plaintiff's reputation in his profession. Defendant accused plaintiff of lying to the court when he filed a motion on behalf of defendant's wife in the domestic litigation. If this were the only statement at issue, we would be inclined to view the statement as a perhaps overly strong denial of the information furnished plaintiff by his client. ¹ However, defendant went further and in two places in the brief accused plaintiff and his client together of acting "above and beyond the law" and of being "outside of the law", thus clearly importing that plaintiff and his client acted in concert to place allegations before the court which were known to be untrue.

Defendant also accused plaintiff of surreptitious action intended to take advantage of a recently inducted judge. An...