Williams v. New Orleans Ernest N. Morial Convention Ctr.

• Decision Date: 11 May 2012
• Docket Number: No. 2011–C–1412.,2011–C–1412.
• Parties: Phil WILLIAMS v. The NEW ORLEANS ERNEST N. MORIAL CONVENTION CENTER.
• Court: Court of Appeal of Louisiana — District of US

92 So.3d 572

Phil WILLIAMS
v.
The NEW ORLEANS ERNEST N. MORIAL CONVENTION CENTER.

No. 2011–C–1412.

Court of Appeal of Louisiana,
Fourth Circuit.

May 11, 2012.

[92 So.3d 574]

Michael M. Duran, Sr., Oats & Hudson, New Orleans, LA, for Relator.

Phil Williams, New Orleans, LA, in Proper Person/Respondent.

(Court composed of Chief Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge EDWIN A. LOMBARD).

CHARLES R. JONES, Chief Judge.

[4 Cir. 1]This matter is on remand from the Louisiana Supreme Court for briefing, argument and an opinion on the issue of whether the district court erred in denying the special motion to strike of the Relator, the New Orleans Ernest N. Morial Convention Center (“the Convention Center”). Finding that the district court did not err in denying the special motion to strike of the Convention Center, we affirm our previous denial of the writ application of the Convention Center.

Mr. Williams frequently worked at the Convention Center as a carpenter and in various other capacities with multiple companies or employers. While employed by Freeman Decorators as a carpenter, Mr. Williams was involved in an altercation with his supervisor Louis R. Duplantier, who was also employed by Freeman Decorators. Mr. Williams was subsequently fired by Freeman Decorators.

After the altercation, the Public Safety Director for the Convention Center, Joseph Hebert, conducted an investigation of the altercation by discussing the matter with Mr. Hebert's own subordinate officers, the Safety Director of Freeman Decorators, and the Convention Center's General Manager and Vice–President of Operations. The Convention Center maintains that Mr. Williams has a history of [4 Cir. 2]having multiple employment-related scuffles in the Convention Center.¹ As a result of his investigation, Mr. Hebert recommended that Mr. Williams be denied further entry into the Convention Center, and that a “blow-up” size picture of Mr. Williams be posted at various security checkpoints in the Convention Center so that security would ensure that Mr. Williams was denied entry. This recommendation was implemented by the Convention Center.

In 2011, Mr. Williams sued the Convention Center alleging defamation and discrimination. The Convention Center filed an exception of no cause of action as to the discrimination claim, and a special motion to strike supported by an affidavit of Mr. Hebert as to the defamation claim. At the hearing of the exception and the motion to

[92 So.3d 575]

strike, the district court granted the exception of no cause of action. However, while considering the merits of the motion to strike, the district court elicited unsworn testimony from Mr. Williams, who alleged that Mr. Duplantier attacked him at the Convention Center. Mr. Williams further argued that he pressed charges against Mr. Duplantier for assault and battery with the New Orleans Police Department, which he alleges is investigating the matter and has prepared a police report in connection therewith. He further argued that he works with 30 or 40 other companies in various capacities for events occurring at the Convention Center; therefore, being banned from the Convention Center has materially affected his ability to support himself. Mr. Williams argued that while he has been banned from the Convention Center, his alleged assailant is still granted access to the Convention Center. Thereupon, the district court granted the exception of no cause of action, but denied the special motion to strike.

[4 Cir. 3]In October 2011, we denied the emergency writ application of the Convention Center, which sought review of the denial of its special motion to strike. Thereafter, the Convention Center filed a supervisory writ application with the Louisiana Supreme Court, which granted the writ application and remanded this matter to our court.

The Convention Center raises five (5) assignments of error:

1. The lower court erred as a matter of law in regarding La. C.C.P. Art. 971 as protecting only private citizens;

2. The district court erred as a matter of law in regarding the enforcement of internal security at the Convention Center as a private matter and not a public issue of public interest;

3. The district court erred as a matter of law in regarding the mere posting of Petitioner/Respondent's photo and name—without any “defamatory statement”—as giving rise to a claim of defamation;

4. The district court erred as a matter of procedural law in basing its denial of the Convention Center's article 971 motion to strike on whether a cause of action had been stated, or a question of fact raised, rather than on whether Mr. Williams “established a probability of success on the claim”; and

5. The district court erred as a matter of procedural law by disregarding the sworn affidavit testimony of the Mr. Hebert and by allowing Mr. Williams to testify, unsworn and un-cross-examined, and thus to amplify his claim beyond his pleading.

“Appellate courts review special motions to strike with the de novo standard of review because it involves issues of law and examines whether the trial court was legally correct”. Melius v. Keiffer, 07–0189, p. 2 (La.App. 4 Cir. 3/12/08), 980 So.2d 167, 170,writ not considered,08–1039 (La.8/29/08), 989 So.2d 90.

We will discuss the first and third assignments of error prior to addressing the remaining assignments of error jointly.

[4 Cir. 4]The first assignment of error raised by the Convention Center is that the district court erred as a matter of law in determining that La. C.C.P. art. 971 protects only private citizens. La. C.C.P. art. 971, entitled Special motion to strike, 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

[92 So.3d 576]

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.

(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.

* * *

F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:

(1) “Act in furtherance of a...