Sullivan v. Malta Park

Citation156 So.3d 1200
Decision Date10 December 2014
Docket NumberNos. 2014–CA–0823,2014–CA–0824.,s. 2014–CA–0823
PartiesJudith SULLIVAN and Wilmoth Thompson v. MALTA PARK, Donald Rankey, Marie Letellier, Willwoods Community Management, Inc. and Homelife in the Gardens, LLC. Madro Bandaries v. F. Evans Schmidt, Koch and Schmidt, LLC.
CourtCourt of Appeal of Louisiana (US)

156 So.3d 1200

Judith SULLIVAN and Wilmoth Thompson
v.
MALTA PARK, Donald Rankey, Marie Letellier, Willwoods Community Management, Inc. and Homelife in the Gardens, LLC.


Madro Bandaries
v.
F. Evans Schmidt, Koch and Schmidt, LLC.

Nos. 2014–CA–0823
2014–CA–0824.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 10, 2014.


156 So.3d 1201

Anna E. Dow, Attorney at Law, Gonzales, LA, for Plaintiff/Appellant.

Marta–Ann Schnabel, Kevin C. O'Bryon, Sherry Watters, O'Bryon & Schnabel, New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge ROLAND L. BELSOME, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).

Opinion

ROSEMARY LEDET, Judge.

This is a defamation case. This case arises out of litigation in which the plaintiff, Madro Bandaries, and the defendants, F. Evans Schmidt and his law firm (Koch and Schmidt, LLC) (collectively “Mr. Schmidt”), were opposing counsel. Mr. Bandaries alleges that Mr. Schmidt defamed him at a deposition by posing offensive questions to the deponent, Judith Sullivan. Ms. Sullivan was both Mr. Bandaries' wife and the plaintiff in the underlying suit. Mr. Bandaries and his associate were both Ms. Sullivan's attorneys in the underlying suit. The gist of the offensive questions was that Mr. Bandaries and his associate were having an affair—“having a sexual relationship.” From the trial court's judgment granting Mr. Schmidt's motion for summary judgment, Mr. Bandaries appeals. For the reasons that follow, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

From December 2011 until November 2012, Ms. Sullivan was a resident of Malta Park, a former assisted living facility located in New Orleans, Louisiana. In November 2012, Mr. Bandaries, in his capacity as Ms. Sullivan's husband-caregiver, removed her, for her safety, from Malta Park and placed her at another assisted living facility, St. Francis Villa Assisted Living (“St. Francis”). In February 2013, Ms. Sullivan and another named plaintiff commenced a suit, entitled Sullivan v. Malta Park, et al., in Orleans Parish Civil

156 So.3d 1202

District Court (“CDC”), No. 13–1355 (the “Sullivan Suit ”).1 The named defendants included, among others, Malta Park.2 In their original petition, the plaintiffs asserted tort and contract claims arising out of the deficient care Malta Park provided to them while they were residents there.3 Ms. Sullivan also asserted that the Malta Park Defendants had fraudulently attempted to seek extra funds from her by reassessing her at a higher level of care. Mr. Bandaries and his associate, M. Claire Trimble, both members of Madro Bandaries, PLC, signed the original petition as the plaintiffs' attorneys.

Mr. Schmidt represented the Malta Park Defendants in the Sullivan Suit. In that capacity, he noticed Ms. Sullivan's deposition. On October 7, 2013, Mr. Schmidt took Ms. Sullivan's deposition at St. Francis. Present at the deposition were the following people: (i) Mr. Schmidt, Malta Park's lead attorney; (ii) Caitlin Morgenstern, Mr. Schmidt's associate and another attorney for Malta Park; (iii) Ms. Trimble, Ms. Sullivan's attorney and Mr. Bandaries' associate; and (iii) Mr. Bandaries, Ms. Sullivan's husband-caregiver and also her attorney. Mr. Bandaries was present at the deposition in his capacity as caregiver, not as attorney. At the conclusion of the deposition, the following colloquy occurred between Mr. Schmidt and Ms. Sullivan, which is the basis for this lawsuit:

Q. [Mr. Schmidt] Do you know who this lady is next to you?
A. [Ms. Sullivan] Yes
Q. [Mr. Schmidt] Who's that?
A. [Ms. Sullivan] My husband's partner.
Q. [Mr. Schmidt] Now, did you talk to her about bringing this lawsuit?
A. [Ms. Sullivan] I don't remember.
Q. [Mr. Schmidt] Okay. Did she talk to you about the lawsuit?
A. [Ms. Sullivan] I don't remember.
Q. [Mr. Schmidt] Okay. Has Ms. Trimble ever talked to you about her having a sexual relationship with your husband?
A. [Ms. Sullivan] No.
MR. BANDARIES:
Hold on. Now, I don't know where you got that or even—but mark that because I'm going to take it before the judge, okay?
MR. SCHMIDT:
That's fine.
MR. BANDARIES:
Okay. We're going to do that. That's so far off the reservation it's unbelievable.
156 So.3d 1203
Okay. Mark it, ma'am, and I want a copy of that deposition.
Q. (BY MR. SCHMIDT) Has your husband ever talked to you about having a sexual relationship with Ms. Trimble?
A. [Ms. Sullivan] No.
Q. [Mr. Schmidt] and you have no knowledge of that.
A. [Ms. Sullivan] No.
Q. [Mr. Schmidt] Okay. I have no other questions.
(Whereupon the deposition was concluded.)

In November 2013, Mr. Bandaries commenced this defamation suit against Mr. Schmidt.4 In his petition, he averred that the basis for the suit was the above-quoted series of questions, which he stated “were not related to the substance of the lawsuit.” He further averred:

• This line of questioning had absolutely no relationship to any fact relevant to the lawsuit for which the deposition was taken; further, the line of questioning could not lead to any fact relevant to the lawsuit. There was no reason to believe that the issue of whether TRIMBLE or BANDARIES had ever talked to SULLIVAN about a sexual relationship was related in any way to SULLIVAN'S litigation.

• Plaintiff states that he has never had a sexual relationship with TRIMBLE.
• On information and belief plaintiff states that the purpose of the line of questioning was to embarrass and humiliate plaintiff in front of his wife.
• As a result of these statements the relationship between SULLIVAN and BANDARIES has been damaged irrevocably. SULLIVAN is disabled, but she fully understood the allegation that SCHMIDT made to her.
• Further, this information was made known to everyone at the deposition that date, and was included in the deposition which was taken for all purposes, according to the stipulation. BANDARIES is an attorney in good standing in the State of Louisiana, and his reputation was impugned by these statements, heard by other members of the legal community. His reputation was therefore damaged.
• The questions asked by SCHMIDT were made with actual malice, in that those statements were made with knowledge that they were false or with reckless disregard of whether those statements were false.
• The statements which alleged an adulterous relationship between the husband of the deponent and his law partner are defamatory per se.

In December 2013, Mr. Schmidt answered the suit and asserted the affirmative defense of qualified immunity. In February 2014, Mr. Schmidt filed a motion for summary judgment or an alternative exception of no cause of action. In support of the motion, Mr. Schmidt enumerated the following statement of uncontested facts:

156 So.3d 1204
• [Mr.] Bandaries is an attorney of record for Ms. Sullivan and Mr. Thomson in the original lawsuit [the Sullivan Suit ]. He is also the husband of Ms. Sullivan. Mr. Bandaries also holds Ms. Sullivan's power of attorney to make financial decisions on her behalf.
• [Mr.] Bandaries' associate, M. Claire Trimble, was also attorney of record for the plaintiffs in the original law suit. Ms. Trimble holds a power of attorney to make medical and health decisions in her behalf.
• In advance of the filing of the original litigation, [Mr.] Bandaries and [Ms.] Trimble both interacted with Malta Park personnel with regard to Ms. Sullivan's care while at Malta Park.
• In advance of the filing of the original litigation, [Mr.] Bandaries and [Ms.] Trimble were both present at meetings between Ms. Sullivan and Malta Park personnel.
• On behalf of the defendants in the original law suit, [Mr.] Schmidt properly noticed the deposition of Judith Sullivan, which went forward on October 7, 2013.
• The line of questioning which purportedly gives rise to the Bandaries suit for defamation is [quoted above in this opinion].
• Ms. Sullivan testified that she left Poydras Home [the
...

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1 cases
  • Sullivan v. Malta Park, Donald Rankey, Marie Letellier, Willwoods Cmty. Mgmt., Inc.
    • United States
    • Court of Appeal of Louisiana (US)
    • 10 Diciembre 2014
    ...156 So.3d 1200Judith SULLIVAN and Wilmoth Thompsonv.MALTA PARK, Donald Rankey, Marie Letellier, Willwoods Community Management, Inc. and Homelife in the Gardens, LLC.Madro Bandariesv.F. Evans Schmidt, Koch and Schmidt, LLC.Nos. 2014–CA–0823, 2014–CA–0824.Court of Appeal of Louisiana, Fourth......

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