ROSEMARY LEDET, Judge.
This is a defamation case. From a judgment in favor of the plaintiff, Reverend Norwood Thompson, Jr., the defendants, First Zion Baptist Church of New Orleans (the "Church"), Anthony Bridges, Dianne Rose, Frank Ben, Hilda Butler, Joycelyn Patterson, Lillian Decquir, Theada Bridges, and Harold Rose (collectively the "Church Defendants") appeal. For the reasons that follow, we affirm.
This defamation claim arose from the following pertinent facts. The Church had two boards: the Deacon Board, which was responsible for its spiritual matters; and the Trustee Board, which was responsible for its financial matters. At the pertinent time, all of the individual Church Defendants, with the exceptions of Lillian Decquir and Theada Bridges, were members of at least one of these boards: Anthony Bridges was the Trustee Board's president; Frank Ben was the Trustee Board's treasurer; Dianne Rose was the Trustee Board's secretary; Joycelyn Patterson and Hilda Butler were Trustee Board members; and Harold Rose was the Deacon Board's chairman. Lillian Decquir was the Church's clerk. Lastly, Theada Bridges was Anthony Bridges' wife and Rev. Thompson's sister.
In late August or early September 1999, Frank Ben, Harold Rose, Lillian Decquir, and two other Church members went to the Church's Bank, Bank One of Louisiana. These members desired to obtain information on the Church's finances, because the Church was planning on building a new sanctuary. They were advised by Bank One that the Church had a $50,000 certificate of deposit ("CD"). Frank Ben, Harold Rose, and Lillian Decquir went back to the Church and informed Anthony Bridges about the $50,000 CD. At this time, there were approximately five or six signatories on the Church's checking account at Bank One, including Anthony Bridges, Lillian Decquir, Harold Rose, and Rev. Thompson. Anthony Bridges and the other Trustee Board members then returned to Bank One and had Rev. and Mrs. Thompson removed as signatories on the account. They had the signatories changed to include only Anthony Bridges, Lillian Decquir, and Frank Ben.
In mid-September 1999, Anthony Bridges held a meeting with the Trustee and Deacon Boards. Rev. and Mrs. Thompson were not invited to the meeting, even though Mrs. Thompson was a Trustee Board member. However, the Thompsons learned of the meeting from Lillian Decquir and decided to attend as they both held positions regarding the Church's finances. During the meeting, Rev. Thompson was unable to identify the source of the CD and was asked to step down as pastor.
Rev. Thompson continuously informed the Church Defendants that he did not steal any money from the Church and that the CD did not belong to the Church. Thereafter, Rev. Thompson realized, and told the Church Defendants, that the tax identification number on the CD was not the Church's tax identification number.
On October 22, 1999, Rev. Thompson and Mrs. Thompson filed a petition for damages and injunctive relief against the
Based on the above allegations, Rev. Thompson sought damages for defamation and injunctive relief. He alleged that he was removed as pastor of the Church pursuant to an illegal election by an improperly constituted Board of Directors.
Despite injunctions and restraining orders issued by the trial court, Rev. Thompson was denied access and locked out of the Church on several occasions. At an injunction hearing on October 29, 1999, the trial court judge informed the Church Defendants that Bank One had in fact made a mistake with regard to the ownership of the CD. Despite this information, the court had to order that Rev. Thompson be restored to his pastoral duties on several occasions. Further, the Church Defendants presented Rev. Thompson with a resignation letter in December 1999, which he refused to sign.
On September 6, 2000, the Church Defendants filed a Petition for Damages for Defamation and Breach of Fiduciary Duty against Rev. Thompson and Mrs. Thompson (the "2000 Lawsuit"). In their petition, the Church Defendants averred:
During this same time period, a television news special called "Showeth Me the Money" was aired on Fox 8. In the news special, one of the Church's Deacons, John Tedford, accused Rev. Thompson of stealing the Church's money. This news special aired several times over a two year period.
The early procedural history of Rev. Thompson's defamation lawsuit against the Church Defendants is outlined in Thompson v. Bank One of Louisiana, 05-1101, pp. 1-3 (La.App. 4 Cir. 1/11/06), 925 So.2d 555, 556-57, as follows:
In January 2006, this court held that the court-ordered permanent reinstatement of Rev. Thompson as pastor of First Zion violated the constitutional principle of separation of church and state. Given this constitutional prohibition, we held that "specific performance, i.e., the reinstatement of Rev. Thompson as pastor of First Zion, is a remedy unavailable to plaintiffs under the facts of this case." Thompson, 05-1101 at p. 3, 925 So.2d at 556-57. We further held that "should the plaintiffs ultimately prove at trial of this matter that Rev. Thompson was wrongfully removed from his position and/or was defamed through the fault of First Zion, the only redress to which the plaintiffs will be entitled is an award of damages, assuming such are proven." Id.
In March 2007, the trial court granted Bank One's motion for partial summary judgment dismissing the defamation claim against it. In 2010, Bank One filed another motion for summary judgment seeking dismissal of the remaining claims. Although the trial court in April 2010 granted that motion,
On May 14 and 15, 2012, a bench trial was held. At trial, the plaintiffs called the
On February 6, 2013, the trial court rendered judgment granting the Motion to Unseal the Record filed by the Thompsons. The trial court also rendered a judgment on the Motions for New Trial and Amended Judgment filed by all the parties. The trial court rendered judgment in favor of Rev. Thompson and against all the defendants awarding the following special damages: $196,228.00 for back pay, $120,246.00 for pastoral annual payment loss, $79,795.00 for fringe benefit loss, plus cost and interest from the date of judicial demand.
The applicable standards of review in this case are as follows. To the extent the issues presented involve the trial court's factual findings, the manifest error standard of review applies. The Louisiana Supreme Court recently summarized the manifest error standard as follows:
Zito v. Advanced Emergency Medical Services, Inc., 11-2382, p. 4-5 (La.5/8/12), 89 So.3d 372, 375.
To the extent the issues presented involve the trial court's damage awards, the following standard applies:
Sommer v. State, Dep't of Transp. & Dev., 97-1929, p. 17 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 934-35.
On appeal, the Church Defendants assert the following assignments of error:
In essence, the Church Defendants appeal the trial court's finding of both liability and damages as to Rev. Thompson's defamation claim. In this appeal, we address liability and damages separately.
The Louisiana Supreme Court has described the tort of defamation as the invasion of a person's interest in his or her reputation and good name. Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 4 (La.7/10/06), 935 So.2d 669, 674 (citing Costello v. Hardy, 03-1146, p. 12 (La.1/21/04), 864 So.2d 129, 139). Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another, (2) an unprivileged publication to a third party, (3) fault (negligence or greater) on the part of the publisher, and (4) resulting injury. Id. The fault requirement is generally considered to be malice, actual or implied. Id. By definition, a statement is defamatory if it tends to harm a person's reputation, lowers the person in the estimation of the community, deters others from associating with the person, or otherwise exposes the person to contempt or ridicule. Id.
In Louisiana, defamatory words have traditionally been divided into two categories. First, words that are defamatory per se are those which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, without considering extrinsic facts
We find that the trial court was correct in finding the Church Defendants' statements were defamatory per se. The Church Defendants accused Rev. Thompson of "embezzlement of Church funds," and of being a "thief" and a "liar" in front of other members of the Church. Further, the Church Defendants filed a lawsuit against Rev. Thompson, after they had been informed by the trial court judge that Rev. Thompson did not take the $50,000 CD in the Church's name. The lawsuit alleged that Rev. Thompson "misappropriated Church funds and used them for his own personal benefit." Further, the lawsuit stated that "the defendant's [Rev. Thompson] actions constituted fraud as he misrepresented and/or suppressed the truth made with the intention to cause loss/and or inconvenience to the Church and its members." Lastly, the lawsuit stated that "several items were missing, including two computers, a communion set, a paper shredder, software books, a microphone system, and other computer hardware" and that "defendants took these items from First Zion [the Church]." These accusations are defamatory per se because they accused Rev. Thompson of criminal conduct and because, by their very nature, they tended to injure Rev. Thompson's professional reputation as a pastor. Thus, Rev. Thompson did not need to prove defamatory words, malice, or falsity. Melancon v. Hyatt Corp., 589 So.2d 1186, 1189 (La.App. 4th Cir.1991) (holding that "because plaintiff Melancon was accused of stealing, he did not need to prove defamatory words, malice or falsity").
The Church Defendants, however, contend that the allegations in their lawsuit do not constitute defamation per se. In support, they cite Kirksey v. New Orleans Jazz and Heritage Found., Inc., 12-1351, p. 8 (La.App. 4 Cir. 2/27/13), 116 So.3d 664, 670. We find this case distinguishable from Kirksey.
In Kirksey, the plaintiff, Kirksey, filed suit against the New Orleans Jazz and Heritage Foundation (the "Foundation") for defamation. 12-1351 at p. 2, 116 So.3d at 667. The suit for defamation was based on an original suit filed by the Foundation against Kirksey for funds that the Foundation claimed were owed to it by Kirksey. 12-1351 at p. 10, 116 So.3d at 671. The Foundation's petition contained allegations of "misappropriating, concealing, converting and/or conspiring to misappropriate certain rebates due to the plaintiff from ticket sales." 12-1351 at p. 5, 116 So.3d at 668. The court held that Kirksey's closely held corporation did owe these funds to the plaintiff and that it breached its contract, but that Kirksey was not personally liable. 12-1351 at p. 1, 116 So.3d at 666. Kirksey filed suit against the Foundation, claiming defamation based on the allegations in the plaintiff's original petition. 12-1351 at p. 2, 116 So.3d at 667. This court stated that "[t]he words contained in the Foundation's petition, which Kirksey complains are defamatory, are words such as misappropriation, conversion, and civil conspiracy, all of which are words used commonly in the area of civil tort litigation." 12-1351 at p. 8, 116 So.3d at 670. Thus, this court did not find that "these words,
In this case, unlike Kirksey, the Church Defendants' lawsuit contained allegations of criminal conduct against Rev. Thompson, not merely personal liability for one's business pursuant to a business contract. Also unlike Kirksey, the Church Defendants' lawsuit not only accused Rev. Thompson of misappropriating money, but also of committing fraud and stealing Church property. These allegations thus go beyond common civil tort litigation allegations; these allegations are criminal allegations that, by their very nature, harm Rev. Thompson's reputation as a pastor. This case is also distinguishable from Kirksey in that here, there was never any truth found to the Church Defendants' allegations. In fact, the Church Defendants abandoned their lawsuit.
Most importantly, the Church Defendants filed their lawsuit against Rev. Thompson after they were told by the trial court judge that Rev. Thompson had not misappropriated Church funds (the $50,000 CD) and that Bank One had made an error. Under these circumstances, the Church Defendants' accusations in their lawsuit against Rev. Thompson constitute defamation per se.
The primary issue in this case is whether Rev. Thompson proved the second element of defamation — publication. Proof that a defendant made an unprivileged publication to a third party is a crucial element of a defamation claim. Brunet v. Fullmer, 00-0644, p. 4 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1242. Publication means the communication of non-privileged defamatory words to even one single person besides the party defamed. Martin v. Lincoln General Hosp., 588 So.2d 1329, 1333 (La.App. 2d Cir.1991) (citing Toomer v. Breaux, 146 So.2d 723, 726 (La.App. 3d Cir.1962)). A defendant who utters a defamatory statement is responsible for all republication that is the natural and probable consequence of the author's act. Martin, 588 So.2d at 1333 (citing Wattigny v. Lambert, 408 So.2d 1126 (La.App. 3d Cir.1981) and Giordano v. Tullier, 139 So.2d 15 (La.App. 4th Cir. 1962)). Publication can be established by either direct or circumstantial evidence. Melancon, 589 So.2d at 1189.
In this case, the Church Defendants contend that there was no evidence of publication. They contend that neither of the two events on which the trial court relied upon to find publication provide sufficient evidence. Those two events are as follows: (1) the Church Defendants' January 2000 Lawsuit, and (2) the Fox 8 News Broadcast. We address the 2000 Lawsuit and the Fox 8 News Broadcast separately.
The Church Defendants contend that the trial court's reliance on the 2000 Lawsuit as publication of the defamation was misplaced because it was a privileged communication. In support, they cite La. R.S. 14:49, which provides:
The record does not support a finding that this privilege applies. In order for the privilege to apply, an otherwise defamatory statement must be "made in good faith on any subject matter in which the person communicating has an
The trial court noted that "even after it was shown that Bank One's error had caused the $50,000 CD to be credited to First Zion Baptist Church of New Orleans, defendants continued their efforts to oust Rev. Thompson from his position as pastor." In fact, at an injunction hearing on October 29, 1999, the previous trial court judge informed the Church Defendants that Bank One had made a mistake with regard to the ownership of the CD and that the Church did not have a $50,000 CD in its name. Despite this information, the Church Defendants filed the Petition for Damages against Rev. Thompson and his wife on September 6, 2000.
The Church Defendants contend on appeal that the trial court's decision was based on a mistake of fact and that their lawsuit and the Fox 8 News Broadcast had nothing to do with the $50,000 CD, but rather with questions about monies expended from the operating account. However, the trial court found that the Church Defendants "presented no evidence to show any discrepancies, or that money was missing or misappropriated." While the 2000 Lawsuit did not specifically refer to the $50,000 CD as the funds that Rev. Thompson allegedly misappropriated, the trial court weighed the evidence and found that the Church Defendants filed the 2000 Lawsuit in an attempt to oust Rev. Thompson and to make it appear that he stole the $50,000 CD. Thus, the trial court found that the Church Defendants, in making the allegations in the 2000 Lawsuit, did not act in good faith and that the conditional privilege codified in La. R.S. 14:49
At trial, the Church Defendants presented the deposition testimony of one of the Church Defendants, Anthony Bridges. However, the other seven individual Church Defendants failed to testify.
The Louisiana Supreme Court reaffirmed the viability of the uncalled witness rule in Driscoll v. Stucker, 04-589, pp. 18-19 (La.1/19/05), 893 So.2d 32, 47, stating:
As noted previously, because Rev. Thompson proved defamation per se, the elements of falsity and malice are presumed, but may be rebutted by the defendant. Costello v. Hardy, 03-1146, p. 14 (La.1/21/04), 864 So.2d 129, 140. As noted, we find no error in the trial court's reliance on the uncalled witness rule to find that the Church Defendants failed to rebut this presumption of malice.
Because we find that each of the Church Defendants is liable for publishing defamatory words against Rev. Thompson through the filing of the 2000 Lawsuit and the uncalled witness rule, it is unnecessary to address whether the Fox 8 News Broadcast meets the publication requirement for defamation.
A plaintiff claiming defamation must present competent evidence of the injuries suffered. Costello v. Hardy, 03-1146, p. 14 (La.1/21/04), 864 So.2d 129, 141. A plaintiff must also demonstrate that the defamatory statements were a substantial factor in causing the harm. Id.
The trial court found that Rev. Thompson was unable to pursue his vocation
Accordingly, we find no error in the trial court's finding that the Church Defendants are liable for defaming Rev. Thompson.
In the alternative, the Church Defendants contend that the trial court abused its discretion in calculating Rev. Thompson's damage awards. Further, Rev. Thompson contends that it was manifest error for the trial court to fail to award Mrs. Thompson damages for loss of consortium. We address each of these damage awards arguments separately.
As noted at the outset, an award of damages in a defamation case is left to the great discretion of the trier of fact and should not be disturbed absent a showing of manifest error. Sommer, 97-1929 at p. 17, 758 So.2d at 934-35. The reviewing court must find that the trier of fact abused its discretion in awarding damages. "[T]he award must be so high or so low in proportion to the injury that it `shocks the conscience.'" Id. Further, the reviewing court must determine not whether the trier of fact is right or wrong, but whether the trier of fact's conclusion is a reasonable one. Zito, 11-2382 at p. 4, 89 So.3d at 375. "If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id.
Damages for defamation include both special damages and nonpecuniary or general damages. Connor v. Scroggs, 35,521, p. 14 (La.App. 2 Cir. 6/12/02), 821 So.2d 542, 552. This court has held that general damages for defamation can include injury to reputation, personal humiliation, embarrassment, mental anguish, and suffering. Sommer, 97-1929 at p. 47, 758 So.2d at 948-49.
The trial court awarded Rev. Thompson $196,228.00 for back pay,
The trial court's calculations were derived from Rev. Thompson's expert economist, Shael N. Wolfson, Ph.D. Dr. Wolfson calculated the back pay, pastoral annual payment loss, and fringe benefits from May 5, 2000 until the date of trial, May 14, 2012. Dr. Wolfson determined that the
The Church Defendants contend that in calculating the damage awards, the trial court failed to take into account the testimony and letter of Rev. Thompsons's physician, Dr. Robert Quintal. In a letter dated August 15, 2006, Dr. Quintal opined that because of Rev. Thompson's heart condition, he could no longer work as of August 2006.
At trial, Dr. Quintal was questioned on direct regarding his opinion on whether Rev. Thompson could return to his pastoral duties despite his health condition. While Dr. Quintal testified that "[Rev. Thompson] is very involved in the community; and those are very stressful situations which I do not believe that he should be involved in," he also testified that he "believe[d] that if he limits his activities to being a pastor, he could [return to work]." Dr. Quintal was also questioned on cross-examination regarding his opinion of whether Rev. Thompson could return to work today. Dr. Quintal responded that he could not make a judgment call regarding Rev. Thompson's ability to work because he never heard him preach.
The record also indicates that Rev. Thompson was involved in several community organizations since 2006.
Given Dr. Quintal's trial testimony coupled with the evidence regarding Rev. Thompson's active and continuous participation in community organizations, we find the trial court's decision to award Rev. Thompson damages from 2000 to 2012 was reasonable. Thus, we find that the trial court did not abuse its discretion in calculating Rev. Thompson's special damages.
Further, we find that the trial court did not abuse its discretion in its award of general damages. Rev. Thompson proved injury to his reputation, personal humiliation, embarrassment, mental anguish, and suffering. Thus, we find that an award of $150,000 for general damages for these injuries was not an abuse of the court's discretion.
Rev. and Mrs. Thompson contend in their appellee brief that it was manifest error for the trial court to fail to award Mrs. Thompson damages for loss of consortium. The appellees, however, failed to file their own appeal or to answer the Church Defendants' appeal. See La. C.C.P. art. 2133.
For the foregoing reasons, the judgment of the trial court is affirmed.
DYSART, J., Dissents.
I respectfully dissent from the majority's conclusion affirming the trial court's finding of defamation per se. First, I note that the trial court's judgment is based on events which occurred after the petition was filed and which, therefore, cannot support the judgment.
It is these events which form the basis of the lawsuit. Plaintiffs alleged that, because of these events, Rev. Thompson "was treated with such contempt as being called a thief and liar," and his character was undermined.
The trial court's judgment, as reflected in its Reasons for Judgment, is largely based on a finding that the defendants accused Rev. Thompson of a crime. The trial court cites Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2 Cir.1975) for the
The former finding, that the defendants continued their efforts to oust Rev. Thompson, clearly does not imply any accusations of criminal activity. The latter finding, that Rev. Thompson was accused of theft on a TV news show, relates to broadcasts that occurred after plaintiffs filed suit.
Setting aside these preliminary matters, I do not find that the record substantiates a finding of defamation per se. To prove defamation, "[a] ... claimant ... must establish the following elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury." Wood v. DelGiorno, 06-1612, p. 4 (La.App. 4 Cir. 12/19/07), 974 So.2d 95, 98. Our jurisprudence reflects that "[d]efamation per se is proven if the evidence demonstrates that a party has called a person a criminal or accused that person of being a criminal and has published the statement." Hornot v. Cardenas, 06-1341, p. 20 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 802.
In finding that plaintiffs proved defamation per se, the majority opinion's reasoning extends beyond the trial court's findings. The majority notes that "[t]he church Defendants accused Rev. Thompson of `embezzlement of Church funds' and of being a `thief' and a `liar' in front of other members of the Church."
Even if the trial court's finding of defamation per se was based on the Second Suit, I disagree that the filing of the Second Suit constitutes defamation per se. While the Second Suit made general allegations that Rev. Thompson "misappropriated Church funds and used them for his own personal benefit" and that an audit of church property conducted after Rev. Thompson left the church resulted in a finding of missing church property, the lawsuit never mentioned the CD or referred to Rev, Thompson as a "thief." Nor was there a judicial determination that the allegations of that Second Suit were false and the majority's finding that "there was never any truth to the allegations" of the Second Suit is not supported by the record. As per this Court's rationale in Kirksey v. New Orleans Jazz & Heritage Foundation, Inc., 12-1351 (La. App. 4 Cir. 2/27/13), 116 So.3d 664, a defamation suit also involving allegations of misappropriation of funds, the filing of the Second Suit does not constitute defamation per se. To hold otherwise would have a chilling effect on the right of individuals to petition the court for redress of an alleged grievance without fear of retribution.
Finally, turning to the trial court's finding that a "member of the Deacon ... Board[] resorted to making accusations of theft on a local TV news show, I do not find that this is supported by the record and, even if Mr. Tedford accused Rev. Thompson of theft, his actions cannot be imputed to the church or the defendants.
The Louisiana Supreme Court indicated in Boulos v. Morrison, 503 So.2d 1, 3 (La.1987), the following as to an "agent's" binding a principal:
There is no evidence in this case that Mr. Tedford had either express or implied authority and accordingly, his statements in the Fox 9 News broadcasts cannot be imputed to the church.
