ROSEMARY LEDET, Judge.
This is a defamation suit. The plaintiff, Dwayne Alexander, filed this suit against multiple defendants. In response, the defendants filed various exceptions and motions for summary judgment. Following a hearing, the trial court rendered judgment dismissing the suit. From that judgment, Mr. Alexander appeals. For the reasons that follow, we affirm in part, reverse in part, and remand.
In June 2017, Mr. Alexander, a former private investigator, commenced this suit against eleven defendants — five attorneys, three law firms, two individuals, and one state agency. For ease of discussion, the eleven defendants are grouped into the following five categories:
This suit stems from an earlier suit that Mr. Alexander filed in Civil District Court for the Parish of Orleans ("CDC"), entitled Alexander v. Centanni, et al., CDC No. 2015-209 (the "Centanni Case"). In his petition in this suit, Mr. Alexander describes the Centanni Case as "a petition to annul a former judgment because attorneys for the parties (of which four are defendants herein, Dennis Phayer, Elizabeth Doubleday and their employers) had used a false affidavit concocted by James P. Englade without authority or board approval of the . . . LSBPIE."
In the Centanni Case, the Blue Williams Defendants, as attorney for Wayne Centanni; the Burglass Defendants, as attorney for Mr. Englade; and the Deutsch Kerrigan Defendants, as attorney for Mr. Parnell, jointly filed a writ application in this court, seeking review of the trial court's ruling denying their motion for summary judgment. They attached to their joint writ application a copy of the February 27, 2009 Cease and Desist Order that the LSBPIE issued to Mr. Alexander (the "C & D Order").
In this suit, the gist of Mr. Alexander's claim is that the defendants defamed him by attaching to their joint writ application a copy of the C & D Order. Mr. Alexander characterizes the C & D Order as a false, forged, and fabricated public record. Mr. Alexander alleges that the defendants had knowledge of the falsity of the C & D Order from the earlier litigation, that the C & D Order "had absolutely nothing to do with the current litigation on writ," and that attaching the document to the writ application was "nothing more than [a] malicious[] and willful act by all defendants to defame, tarnish petitioner['s] reputation putting him in a false light to the courts." Mr. Alexander further alleges that the C & D Order was "circulated" to the court, the court's employees and staffs, the clerk of court's staff, and counsel of record and that it was "placed in the public records."
In response, the defendants filed various exceptions and motions for summary judgment. Mr. Alexander also filed a cross-motion for partial summary judgment. Following a hearing, the trial court denied Mr. Alexander's cross-motion and ruled on the defendants' exceptions and motions as follows:
In its written reasons for judgment, the trial court stated as follows:
For those reasons, the trial court dismissed Mr. Alexander's claims against all of the defendants with prejudice.
Mr. Alexander contemporaneously filed a Motion for New Trial and a Motion to Recuse the trial judge. The matter was referred to another CDC section for a ruling on the Motion to Recuse. The judge in the other section denied the Motion to Recuse and transferred the matter back to the trial judge. The trial judge denied the Motion for New Trial. This appeal followed.
Although Mr. Alexander assigns multiple errors,
A de novo standard of review applies to this court's review of a trial court's judgment maintaining a peremptory exception of no cause of action, which presents a legal question. See Zeigler v. Housing Auth. of New Orleans, 12-1168, p. 6 (La. App. 4 Cir. 4/24/13), 118 So.3d 442, 449 (citing St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12-545, p. 7 (La. App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009). Summarizing the governing principles applicable to an exception of no cause of action, the Louisiana Supreme Court in Fink v. Bryant, 01-0987, pp. 3-4 (La. 11/28/01), 801 So.2d 346, 348-49, stated as follows:
Id. "Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial." Badeaux v. Sw. Computer Bureau, Inc., 05-0612, p. 7 (La. 3/17/06), 929 So.2d 1211, 1217.
The State Defendants, joined by the Burglass Defendants, based their peremptory exception of no cause of action on Mr. Alexander's alleged failure to satisfy the Montalvo heightened-pleading standard. "This heightened standard requires the plaintiff to allege facts in his petition that show malice or an intent to cause direct harm to the plaintiff." Eschete v. Hildebrand, 06-18, p. 5 (La. App. 5 Cir. 4/25/06), 930 So.2d 196, 199 (citing Rogers v. Ash Grove Cement Co., 34,934, p. 6 (La. App. 2 Cir. 11/2/01), 799 So.2d 841, 845). The State Defendants, relying on Landry v. Base Camp Mgmt., LLC, 15-1377, p. 8 (La. App. 1 Cir. 10/31/16), 206 So.3d 921, 925, emphasize that "[s]ince Montalvo, no Louisiana court has recognized the existence of a cause of action that was brought by a non-client against an adversary's attorney without alleging the Montalvo requirements of intent to cause direct harm and malice." The State Defendants contend that Mr. Alexander's petition fails to satisfy the Montalvo heightened-pleading standard.
Mr. Alexander counters that he sufficiently pled "malice" by averring that the "statements were made with actual malice, with knowledge that they were false." In support, he identifies the following paragraphs of his petition as sufficient to support a cause of action for defamation:
Although the trial court, in granting the exception of no cause of action, cited the qualified privilege in its reasons for judgment, the jurisprudence is unclear on whether a qualified privilege defense properly can be asserted on an exception of no cause of action.
Id. Additionally, this court observed, in Jacobs v. O'Bannon, 472 So.2d 180, 182 (La. App. 4th Cir. 1985), the following:
Id.
In considering an exception of no cause of action, the allegations of the petition are dispositive. La. C.C.P. art. 931 (providing that "[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action"). In his petition, Mr. Alexander alleges that the statements in the C & D Order were made "with full knowledge of the falsity" and that the statements were intentionally made to harm him and to tarnish his reputation and "without [other] purpose." Given these allegations, we find that Mr. Alexander has pled sufficient facts not only to satisfy the Montalvo heightened-pleading standard, but also to withstand a qualified privilege defense, even assuming it could be invoked on an exception of no cause of action.
In sum, the trial court legally erred in maintaining the exception of no cause of action and dismissing the State Defendants and the Burglass Defendants on that basis. The only remaining issue is whether the trial court erred in granting the motions for summary judgment.
Mr. Alexander contends that the summary judgments the trial court granted in this case are absolute nullities because the motions filed by the Blue Williams Defendants, the Deutsch Kerrigan Defendants, and Ms. Kovac were not served on him by the sheriff.
Ainsworth was decided before the 2015 amendment to the summary judgment provisions, which expressly address the requirements for service of a motion for summary judgment. As amended in 2015, La. C.C.P. art 966(B)(1) provides that "[a] motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with [La. C.C.P.] Article 1313 not less than sixty-five days prior to trial." Article 1313 provides that "if a pleading or order sets a court date, then service shall be made by registered or certified mail, or as provided in [La. C.C.P.] Article 1314." Article 1314 addresses service by the sheriff. Read together, Articles 966(B)(1) and 1313(C) provide that proper service of a motion for summary judgment may be made in one of two ways: (i) by registered or certified mail (Article 1313(C)); or (ii) by the sheriff (Article 1314).
Given the 2015 Amendment to the summary judgment provisions, two of the defendants' four motions for summary judgment were properly served. The Burglass Defendants' motion was served by the sheriff, as reflected by a return in the record; the Blue Williams Defendants' motion was served by certified mail, as reflected by counsel's affidavit. Neither the Deutsch Kerrigan Defendants nor Ms. Kovac, however, cite to any evidence of proper service of their motions for summary judgment. Instead, they argue that Mr. Alexander waived service either by making a general appearance or by failing to file a written exception. This argument is unpersuasive.
Regarding the merits of the motions for summary judgment, Mr. Alexander's sole argument is that the qualified privilege issue is not suitable for summary judgment. He contends that summary judgment is inappropriate in this context given that application of the qualified privilege requires a determination of intent. He emphasizes that in Jones v. Gov't Employees Ins. Co., 16-1168, p. 13 (La. App. 4 Cir. 6/14/17), 220 So.3d 915, 925, this court held that summary judgment "is inappropriate for judicial determination of subjective facts, such as . . . intent." Id. Mr. Alexander thus submits that the trial court's judgment granting the defendants' motions for summary judgment should be reversed.
Contrary to Mr. Alexander's contention, the granting of a motion for summary judgment on issues of intent is not precluded; rather, Louisiana jurisprudence has recognized that "`summary judgment based on subjective facts like intent is rarely appropriate.'" Indulge Island Grill, L.L.C. v. Island Grill, L.L.C., 16-1133, p. 5 (La. App. 4 Cir. 5/10/17), 220 So.3d 154, 158 (citing Fiveash v. Pat O'Brien's Bar, Inc., 15-1230, p. 1 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 914). Indeed, "Louisiana courts have recognized that, while `rare', summary judgment may be granted on subjective intent issues when no issue of material fact exists concerning the pertinent intent." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, pp. 28-30 (La. 7/5/94), 639 So.2d 730, 751-52.
"In a defamation case, appellate courts review a grant of a motion for summary judgment de novo using the same criteria district courts consider when determining if summary judgment is proper."
This court has noted that, "in reviewing summary judgments, we remain mindful of which party bears the burden of proof." Orleans Parish School Bd. v. Lexington Ins. Co., 12-0095, p. 6 (La. App. 4 Cir. 8/28/13), 123 So.3d 787, 790. The burden of proof on a motion for summary judgment is governed by La. C.C.P. art 966(D)(1), which provides as follows:
"The determination of whether a fact is material turns on the applicable substantive law." Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith, 93-2512, p. 27, 639 So.2d at 751).
As noted at the outset of this opinion, this is a defamation suit. Mr. Alexander alleges publication of statements — the C & D Order — accusing him of criminal conduct. Under the traditional defamation rules of Louisiana,
In addressing qualified privileges in general, the jurisprudence has adopted the following two-step analytical framework:
Smith, 93-2512, p. 18 (La. 7/5/94, 639 So.2d 730, 745 (internal citations omitted).
Here, the existence of the qualified privilege is undisputed; both the jurisprudence and statutory law of this state recognize that statements by attorneys and their clients in judicial proceedings generally are subject to a qualified privilege. Contrary to Mr. Alexander's allegation in his petition that the C & D Order "had absolutely nothing to do with the current litigation on writ," the C & D Order was attached to Mr. Alexander's petition that he filed in the Centanni case. The C & D Order therefore was material to the earlier litigation. Step one is met. The narrow issue here is whether step two — an abuse of the privilege — is met. Given the qualified privilege was successfully asserted, the burden of proof was on the plaintiff — Mr. Alexander — to establish an abuse of the privilege. Kennedy, 05-1418, p. 20, 935 So.2d at 683 (citing Smith, 93-2512, p. 20 (La. 7/5/94), 639 So.2d 730, 746).
In determining whether the privilege was abused, "the courts have focused on two factors: one, that the plaintiff has the burden of proving malice or lack of good faith; and two, that the definition of malice or lack of good faith in this context is predominately one of objective reasonableness." Smith, 93-2512, p. 19, 639 So.2d at 746.
Summarizing the general malice-based (reckless disregard for the truth) approach for establishing an abuse of the privilege, one court observed:
Hakim v. O'Donnell, 49,140, pp. 14-15 (La. App. 2 Cir. 6/25/14), 144 So.3d 1179, 1189 (Internal citations omitted).
In deciding whether an abuse of the privilege has been established, the Supreme Court in Smith noted that "[a]nother definitional approach is to avoid altogether attempting to define the overused term `malice.'" Smith, 93-2512, p. 24, 639 So.2d at 749. Under this alternative approach, "the conditional privilege is abused `if [the actor] does not act for the purpose of protecting the interest for the protection of which the privilege is given.'" Id. (quoting RESTATEMENT (SECOND) OF TORTS § 603).
Applying these principles, we find that Mr. Alexander cannot establish an abuse of the privilege under the undisputed facts. The motivating purpose for the defendants' publication — attachment of the C &D Order to their joint writ application — was for a purpose the privilege was intended to protect. The defendants attached a copy of the C & D Order to their joint writ application because it was an attachment to Mr. Alexander's petition commencing the underlying case, the Centanni Case. As the Blue Williams Defendants contend, "[a]ll defendant[s] did was use a copy of the plaintiff's own document, that he had already placed in the record." Indeed, as the State Defendants point out, the defendants were required to attach a copy of the C & D Order to their joint writ application because Mr. Alexander attached the document to his petition to annul in the Centanni Case. UNIF. RULES LA. APP. COURTS, Rule 4-5(C)(8) (providing that parties are required to attach to their writ applications "a copy of each pleading on which the judgment, order, or ruling was founded, including the petition(s) in civil cases").
For these reasons, the trial court did not err in granting the motions for summary judgment filed by the Blue Williams Defendants and the Burglass Defendants.
For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment filed by the Blue Williams Defendants and the Burglass Defendants is affirmed. The judgment of the trial court maintaining the peremptory exception of no cause of action filed by the State Defendants and the Burglass Defendants is reversed. The judgment of the trial court granting the motions for summary judgment filed by the Deutsch Kerrigan Defendants and Ms. Kovac are reversed. This matter is remanded to the trial court for further proceedings.
Additionally, the jurisprudence divides defamatory words into two categories: (i) those that are susceptible of a defamatory meaning; and (ii) those that are defamatory per se. Brungardt v. Summitt, 08-0577, p. 8 (La. App. 4 Cir. 4/8/09), 7 So.3d 879, 885. "The Supreme Court stated that `[w]ords which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se.'" Brungardt, 08-0577, p. 8, 7 So.3d at 885 (quoting Costello, supra). "If publication of words that are defamatory per se is proven, the elements of falsity, malice, fault, and injury are presumed, but they can be rebutted." Id., 08-0577 at pp. 8-9, 7 So.3d at 885. Finally, "even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified." Costello, 03-1146, p. 15, 864 So.2d at 141.