Muller v. Fort Pike Volunteer Fire Dep't

• Decision Date: 26 June 2019
• Docket Number: NO. 2019-CA-0156,2019-CA-0156
• Parties: Henry MULLER v. FORT PIKE VOLUNTEER FIRE DEPARTMENT aka Fort Pike Fire Protection District aka Fort Pike Volunteer Fire Department District One and Bryan Gonzales, both Individually and in his Capacity as President and Secretary of the above and Kirk Jacobs, both Individually and as President of the above
• Court: Court of Appeal of Louisiana — District of US

275 So.3d 927

Henry MULLER

v.FORT PIKE VOLUNTEER FIRE DEPARTMENT aka Fort Pike Fire Protection District aka Fort Pike Volunteer Fire Department District One and Bryan Gonzales, both Individually and in his Capacity as President and Secretary of the above and Kirk Jacobs, both Individually and as President of the above

NO. 2019-CA-0156

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 26, 2019

Henry Muller, 228 Lake Village Blvd., Slidell, LA 70461, PRO SE, PLAINTIFF/APPELLANT

William H. Dunckelman, Jr., Laurent J. Demosthenidy, SCHAFER & SCHAFER, 328 Lafayette Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES

(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet )

Judge Rosemary Ledet

This is a tort suit. The plaintiff, Henry Muller, sued the defendants—the Fort Pike Volunteer Fire Department (the "Department"), Bryan Gonzalez, and Kirk Jacobs (collectively the "Defendants")—for defamation. In response, Mr. Jacobs filed an exception of no cause action; and the Defendants filed a special motion to strike the petition, pursuant to La. C.C.P. art. 971. In connection with the motion to strike, Mr. Muller caused a subpoena duces tecum to issue to the Department; and the Defendants filed a motion to quash the subpoena. The trial court granted Mr. Jacobs' exception and the Defendants' motions. From that judgment, Mr. Muller appeals. Answering Mr. Muller's appeal, the Defendants request attorney's fees and costs. For the reasons that follow, we affirm the trial court's judgment and remand the Defendants' request for attorney's fees and costs.

BACKGROUND

The Lake Catherine area (including Fort Pike) is a geographically remote part of New Orleans. Fire protection services are provided to the Lake Catherine area primarily by the New Orleans Fire Department and the Louisiana State Fire Marshall. Additionally, since 1952, the Department, a private entity organized under Louisiana law, has provided supplemental fire protection services to the Lake Catherine area.

To support the Department's volunteer efforts, the Legislature created the Fort Pike Fire Protection District, a public entity. See La. R.S. 40:1503.1 (the "Statute"); see also La. R.S. 40:1500 (providing that "[f]ire protection districts shall constitute public corporations"). The Statute provides that "the affairs of the district shall be managed by the members of the governing board of the [Department]" and authorizes the Department's board to levy, with the approval of qualified electors in the district, an annual ad valorem tax. La. R.S. 40:1503.1(D), (E).¹

In mid-2017, Mr. Muller joined the Department. After joining the Department, Mr. Muller sent an email to the Department's chief, Charles Schmalz, who forwarded it to Mr. Gonzalez.² In the email, Mr. Muller stated that, under the Statute, the Department had been absorbed into the Fort Pike Fire Protection District and was thus "a public corporation by [s]tatute." Mr. Muller stated that, as matters stood, the Department was essentially "a private corporation operating under color of law as a [m]unicipality" and that "[o]perating a [m]unicipality like a private corporation could lead to serious problems."

One such problem, Mr. Muller suggested, was that doing so may constitute the crime of malfeasance in office under La. R.S. 14:134. Mr. Muller also suggested that all board meetings were now subject to the Open Meetings Law³ and were, thus, required to be publicized at least one week in advance. Mr. Muller pointed out that violations of the Open Meetings Law are subject to private enforcement actions seeking, among other remedies, civil penalties for which violators may be personally liable.

On November 11, 2017, the Department held its monthly membership meeting. During the meeting, Mr. Jacobs invited Mr. Muller to address the issues raised in his email. Mr. Muller expressed concern that the board was not working well with the firemen, that recruitment efforts were insufficient, and that operating under the title of "Fort Pike Fire Protection District" would assist in raising revenue. Mr. Jacobs then opened the floor for discussion.

At that time, Mr. Gonzalez addressed Mr. Muller's concern about the Department continuing to operate as a private entity. Mr. Gonzalez then explained that the Department does not receive any government revenue and does not operate as a municipality. The board's vice president, Michael Comisky, further explained why dissolution of the Department and reorganization as a fire protection district would be undesirable. Other members then expressed their views, and the meeting ended.

In the months following the meeting, Mr. Muller sent emails to Mr. Schmalz and the board members, expressing dissatisfaction with his treatment at the November 11, 2017 membership meeting and his intent to take legal action. In response, Mr. Gonzalez searched publicly available records for information about Mr. Muller. During his search, Mr. Gonzalez learned that Mr. Muller had been convicted of false impersonation of a peace officer. Mr. Gonzalez shared this information at a March 10, 2018 membership meeting; and the members voted to expel Mr. Muller from the Department.

A month later, Mr. Muller filed this suit. In his petition, Mr. Muller made the following allegations:

• That, at the November 11, 2017 membership meeting, Mr. Gonzalez had "verbally attacked [Mr. Muller] by stating that [Mr. Muller] made email ‘threats’ to him," that "[a]s a result of the vicious, malicious and unwarranted attack by [Mr.] Gonzales ... [Mr. Muller had] endured public humiliation, contempt, ridicule, [and] obloquy," and that his "reputation was irreparably damaged"; and

• That, at the March 10, 2018 membership meeting, the Defendants "discussed information about [Mr. Muller], obtained through an unauthorized background check, the purpose of which was to attempt to ridicule and shame [Mr. Muller] in public and for the purpose of reprisal"; and

• That Mr. Jacobs, as president, had a duty, but failed, "to control each meeting, its board members and the content discussed publically [sic]."

Based on these allegations, Mr. Muller asserted that the Defendants were liable to him for defamation.

In response, Mr. Jacobs filed an exception of no cause of action, contending that the petition failed to allege he personally defamed Mr. Muller and that he could not be held liable for any allegedly defamatory statements made by Mr. Gonzalez. The Defendants also filed a special motion to strike Mr. Muller's petition under La. C.C.P. art. 971, denying that Mr. Gonzalez had characterized Mr. Muller's email as a threat and, in the alternative, that even if Mr. Gonzalez had characterized the email as a threat, such speech was protected as a matter of law. In support, the Defendants submitted ten affidavits.⁴

After the exception and the motion to strike were set for hearing, Mr. Muller caused a subpoena duces tecum to issue to the Department to produce documents at the hearing. The Defendants moved to quash the subpoena, arguing that, under La. C.C.P. art. 971(D), discovery was automatically stayed until the trial court ruled on the motion to strike.

On August 10, 2018, the parties appeared for a hearing on Mr. Jacobs' exception and the Defendants' motions. After a bench conference, the trial court indicated that these matters would be submitted on the pleadings. Subsequently, Mr. Muller filed an opposition, praying that Mr. Jacobs' exception and the Defendants' motions be denied. In support of his objection, Mr. Muller filed three affidavits.⁵

On November 14, 2018, the trial court granted Mr. Jacobs' exception of no cause of action and the Defendants' motion to strike the petition, dismissing Mr. Muller's claims. The trial court also granted the Defendants' motion to quash the subpoena duces tecum . Mr. Muller appealed.⁶ The Defendants answered Mr. Muller's appeal, seeking attorney's fees and costs.

DISCUSSION

Mr. Muller assigns as error the trial court's rulings granting the Defendants' motion to quash the subpoena duces tecum and granting the Defendants' motion to strike the petition.⁷ Before addressing Mr. Muller's arguments, an overview of the constitutional, statutory, and jurisprudential framework within which Mr. Muller's defamation claims are analyzed is appropriate.

Defamation is "an invasion of a person's interest in his reputation and good name." Sassone v. Elder , 626 So.2d 345, 350 (La. 1993) (citing W. Page Keeton, et al. , PROSSER AND KEETON ON THE LAW OF TORTS , § 111 (5th ed. 1984)). Like other states, Louisiana has long recognized a cause of action for defamation. See Costello v. Hardy , 03-1146, p. 13, n.10 (La. 1/21/04), 864 So.2d 129, 140 (observing that, "[s]ince at least 1840, the courts of this state have recognized that defamation is a quasi-offense governed by [La. C.C.] art. 2315").

Nonetheless, "not all defamatory statements are actionable." Fitzgerald v. Tucker , 98-2313, p. 11 (La. 6/29/99), 737 So.2d 706, 716. Both the United States and Louisiana constitutions guarantee the freedom of speech. U.S. CONST. , Amend. I (providing that "Congress shall make no law ... abridging the freedom of speech"); LA. CONST. , Art. I, § 7 (providing that "[n]o law shall curtail or restrain the freedom of speech"). For example, it is well-settled that "[s]peech on matters of public concern enjoys enhanced constitutional protection." Romero v. Thomson Newspapers (Wisconsin), Inc. , 94-1105, p. 6 (La. 1/17/95), 648 So.2d 866, 869 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) ). Indeed, "[a] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Romero , 94-1105, p. 7, 648 So.2d at 870 (quoting Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990) ).

To protect speech on...