Millet v. Johnson

• Citation: 381 So.2d 1293
• Decision Date: 11 March 1980
• Docket Number: No. 10765,10765
• Parties: Judy Belle V. Millet, wife of Lester J. MILLET, Jr. v. Lloyd B. JOHNSON, Individually and as Sheriff of St. John the Baptist Parish.
• Court: Court of Appeal of Louisiana — District of US

Page 1293

381 So.2d 1293

Judy Belle V. Millet, wife of Lester J. MILLET, Jr. v. Lloyd B. JOHNSON, Individually and as Sheriff of St. John the Baptist Parish.

No. 10765.

Court of Appeal of Louisiana, Fourth Circuit.

March 11, 1980.

Louis R. Koerner, Jr. and Terry A. Bell, New Orleans, for plaintiff-appellant.

Carville & Edrington, LaPlace, Richard L. Edrington and Bernard J. Rice, III, LaPlace, for defendant-appellee.

Before GULOTTA, CHEHARDY and HOOD, JJ.

HOOD, Judge.

This is a defamation suit instituted by Mrs. Judy Belle Millet against a number of defendants, one of whom is Lloyd B. Johnson, individually and as Sheriff of St. John the Baptist Parish. In response to a motion filed by Johnson, a summary judgment was rendered by the trial court dismissing plaintiff's suit. Plaintiff appealed. We reverse.

The issue presented is whether a genuine issue of material fact exists, and thus whether the trial judge erred in rendering a summary judgment.

LSA-C.C.P. art. 966 provides that a motion for summary judgment shall be allowed if the pleadings, depositions, admissions on file and affidavits show "that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." The summary judgment remedy is not a substitute for a trial. The mere likelihood that the mover will succeed following a trial on the merits, or the belief that the opposing party is unlikely to prevail despite a genuine issue as to a material fact, is not a sufficient basis to warrant the rendition of a summary judgment depriving the litigant of a trial. The burden of proof rests on the party seeking the summary judgment to show that there is no genuine issue as to a material fact and that the mover is entitled to judgment as a matter of law. All doubts concerning the use of such a procedure must be resolved against the granting of a summary judgment and in favor of a trial on the merits. LSA-C.C.P. art. 966, Hobbs v. Firemen's Fund-American Insurance Cos., 293 So.2d 608 (La.App. 3rd Cir., 1974); Mandella v. Russo, 294 So.2d 598 (La.App. 4th Cir., 1974). Laufer v. Touro Infirmary, 334 So.2d 541 (La.App. 4th Cir., 1976). Parker v. South Louisiana Contractors, 340 So.2d 322 (La.App. 1st Cir., 1976).

The pleadings, the admissions on file, the deposition of Robert M. Becnel, the affidavits, and the other receivable evidence in the record, including letters and documents, show that plaintiff is the wife of Lester J. Millet, Jr., who served as Sheriff of St. John the Baptist Parish for several months prior to January 30, 1976. Defendant Johnson defeated Millet in the latter's bid for re-election as Sheriff in 1975, and Johnson was sworn in as Sheriff of that Parish during the early part of 1976. After the election, but before Millet went out of office, the regular bookkeeper for the Sheriff's office resigned, and Millet employed his wife, the plaintiff in this suit, to be the bookkeeper for that office.

On or about August 17, 1976, after Johnson had been sworn in as sheriff, he submitted to the Police Jury of St. John the Baptist Parish a written report of the expenditures made by the Sheriff's Office during the preceding fiscal year, as required by LSA-R.S. 42:283. In that report, he showed that his predecessor, Millet, while serving as Sheriff, paid to plaintiff, his wife, the sum of $3,000.00 for employment for "1/2 month." Under a heading entitled "St. John Parish Sheriff Salary Fund, Salary Expenditures for period between July 1, 1975 and January 30, 1976," the report includes the following listing:

That report was submitted to the Police Jury and thereafter it was published in "L'Observateur," the official journal of the Parish of St. John the Baptist.

Mrs. Millet learned about the above listing some time prior to the time the report was published. She thereupon informed defendant Johnson and all members of the Police Jury, by letter, that the report was incorrect. In that letter she advised that she had been employed to work in the Sheriff's Office for a period of three months, beginning November 1, 1975, and ending January 30, 1976, at a salary of $1,000.00 per month, and she requested that the report be corrected to show that fact before it was published. She stated that if the report should be published as originally submitted by Johnson, showing that her husband paid her $3,000.00 for working only 1/2 month, she intended to institute suit against Johnson and all members of the Police Jury. Mrs. Millet also called attention in that letter to an error in the report relating to the payment of a telephone bill by the Sheriff's Office.

Defendant Johnson received the letter which Mrs. Millet wrote to him. He also received another letter from the Secretary-Treasurer of the Police Jury, dated August 31, 1976, advising him of the alleged discrepancy pointed out by Mrs. Millet, and asking him if there were to be any changes in the financial report which he had submitted to the Police Jury. Johnson replied by letter that "there are no changes to be made in the Salary Fund Records with reference to Mrs. Millet." He added a footnote to the report, however, explaining the error relating to the telephone bill.

After Johnson informed the Police Jury that there would be no changes in the financial report, Mrs. Millet then sent a mailgram to each member of the Police Jury which reads:

"I HAVE BEEN ADVISED BY MY ATTORNEY TO PUT YOU ON NOTICE THAT THE AUDIT REPORT OF SHERIFF LLOYD B. JOHNSON OF SAINT JOHN THE BAPTIST PARISH STATING I RECEIVED $3,000.00 FOR ONE HALF MONTH WORK IS UNTRUE. UNLESS I AM ALLOWED TO DEFEND MYSELF BEFORE THE REPORT IS PUBLISHED TO READ $3,000.00 FOR 3 MONTHS WORK OF WHICH I HAVE SUBSTANTIAL PROOF THAT I DID WORK 3 MONTHS I WILL HAVE NO ALTERNATIVE BUT TO SUE YOU PERSONALLY FOR DEFAMATION OF CHARACTER. I AM USING THIS TELEGRAM AS MY OFFICIAL NOTICE THAT YOU WILL BE SUED PERSONALLY IF THIS REPORT IS PUBLISHED IN IT'S PRESENT FORM

JUDY BELLE V. MILLET"

Despite these notices and requests, the financial report was published as originally submitted by defendant Johnson, except for the footnote which was added to explain the error contained therein relating to the payment of a telephone bill.

The record contains affidavits of three former employees of the Sheriff's Office, all of whom declared that Mrs. Millet worked as the bookkeeper in the Sheriff's Office for three months, during November and December, 1975, and January, 1976. Also in the record is an affidavit executed by Mrs. Millet stating that the financial report filed by Johnson contains an erroneous entry relating to her employment, that she attempted to have Johnson correct the error but he "refused to investigate the error or correct same," and that the report was published in a paper of general circulation in St. John the Baptist Parish "at the insistence and with the approval of defendant Johnson, all in complete disregard of affiant's notices that an error had been committed." The affidavit further recites that "Johnson had reason to know of the falsity of the report," and that "he had the necessary motive and intent to maliciously publish the defamatory report."

Defendant Johnson submitted with his motion for summary judgment two affidavits, one signed by him and the other signed by an employee of the Sheriff's Office, both stating, in effect, that according to the records of that office the information contained in Johnson's financial report relating to the salary paid to Mrs. Millet is true. He also attached to his motion an affidavit signed by the President of the Police Jury reciting that the decision to publish the financial report was made by the Police Jury, and that "Johnson was not a party to that decision."

Johnson also contends that Mrs. Millet is a "public official," or a "public figure," or a "public person," or that she is a "private figure involved in public debate,"...