Opinion
2015 CA 1486
07-11-2016
LEROY HUBERT AND HIS WIFE, ELLEANOR LEAGEA HUBERT v. CITY OF BATON ROUGE PARISH OF EAST BATON ROUGE, DEPARTMENT OF PUBLIC WORKS
Michael L. Tyler Baton Rouge, LA Counsel for Plaintiffs-Appellants Leroy and Elleanor Hubert Arlene C. Edwards Baton Rouge, LA Counsel for Defendants-Appellees City of Baton Rouge/Parish of East Baton Rouge, Department of Public Works and Peter Newkirk, in his capacity as the Public Works Director
NOT DESIGNATED FOR PUBLICATION
Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 590,969 Honorable Kay Bates, Judge Michael L. Tyler
Baton Rouge, LA Counsel for
Plaintiffs-Appellants
Leroy and Elleanor Hubert Arlene C. Edwards
Baton Rouge, LA Counsel for
Defendants-Appellees
City of Baton Rouge/Parish of
East Baton Rouge, Department
of Public Works and Peter
Newkirk, in his capacity as the
Public Works Director BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. GUIDRY, J.
The appellants, Leroy and Elleanor Hubert, appeal a judgment dismissing their claim of defamation by summary judgment. Finding no error in the trial court's ruling, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Huberts filed a petition for damages against the City of Baton Rouge, Parish of East Baton Rouge, Department of Public Works (City/Parish), alleging that they were damaged as a result of the City/Parish causing false information to appear in the local news media in Baton Rouge. After the trial court sustained exceptions alleging vagueness and no cause of action, the Huberts filed a supplemental and amending petition wherein they alleged that Peter Newkirk, Director of the Department of Public Works, falsely accused Mr. Hubert of using City/Parish resources to clear property located near 45th Street in Baton Rouge that was not owned by him. They further alleged that Mr. Hubert had been the victim of retaliation as a result of the situation sued upon.
The City/Parish answered the Huberts' petition and generally denied any liability for their claims. On March 30, 2012, the City/Parish filed a peremptory exception asserting that res judicata barred consideration of the Huberts' claim of retaliation and also filed a motion for summary judgment seeking dismissal of the Huberts' defamation claim. Following a hearing held on May 14, 2012, the trial court sustained the City/Parish's exception alleging res judicata and granted its motion for summary judgment in a judgment signed May 31, 2012.
The Huberts then filed an "Application for a Rehearing and in the Alternative, Motion to Reopen Case," but before the trial court could act on the pleading, the Huberts filed a motion to recuse, which was later denied. The Huberts' application for rehearing was then set for a hearing, after which it too was denied. Thereafter, the Huberts devolutively appealed the May 31, 2012 judgment.
ISSUES PRESENTED FOR REVIEW
In support of their appeal seeking reversal of that portion of the trial court's judgment granting the City/Parish's motion for summary judgment, the Huberts assert the following:
I. Whether a party, who signed a Case Management Schedule, can be unilaterally allowed to file a motion for summary judgment after the expiration of the date for the filing of all motions under the Case Management Schedule has lapsed.
II. Whether a genuine issue of material fact exists where the Court feels the allegation will be highly questionable to prove, the Plaintiff[s] [have] evidence and testimony to argue the allegation and the Defendant has not put forth ... evidence to show that the facts surrounding the allegation are no longer at issue.
DISCUSSION
In the first issue raised by the Huberts, they assert that the trial court should have precluded the City/Parish from filing a last minute motion for summary judgment pursuant to the doctrine of equitable estoppel. We observe, however, that the Huberts did not raise in the trial court the objection that they are now raising on appeal—that it was unfair for the trial court to consider the City/Parish's motion for summary judgment, which was filed after the deadline established in the case management schedule agreed to by the parties. A party permitting a case to go to judgment without objecting to the procedure or excepting to the pleadings cannot question, on appeal, the propriety of the proceedings. Brady v. Brady, 388 So. 2d 57, 58 (La. App. 1st Cir. 1980). In the absence of an objection, the complaining party must be deemed to have waived his right to complain of an alleged impropriety on appeal. Schoonmaker v. Capital Towing Company, 512 So. 2d 480, 486 (La. App. 1st Cir.), writ denied, 514 So. 2d 458 (La. 1987); Murphy v. 1st Lake Properties, Inc., 12-649, pp. 12-13 (La. App. 5th Cir. 5/23/13), 116 So. 3d 964, 973, writ not considered, 13-1728 (La. 10/25/13), 124 So. 3d 1088.
The City/Parish filed its motion for summary judgment on March 30, 2012, at which time the trial on the merits was scheduled for May 29, 2012.
The record contains four case management schedules, the last being issued after the hearing on the motion for summary judgment while a rehearing in the matter was still pending. The first case management schedule, signed by the trial court on April 13, 2011, assigned general discovery and evidence exchange deadlines, but also included the provision that "[a]ll other motions [besides discovery motions] must be filed on or before 7/10/11." The next case management schedule, signed by the trial court on December 13, 2011, simply established a trial date of March 28, 2012. The third case management schedule, signed by the trial court on March 28, 2012, simply set a new trial date of May 29, 2012.
While the Huberts did oppose the City/Parish's motion for summary judgment, in their opposition below, there is no reference to the argument now being raised for the first time on appeal. On appeal, an appellant is limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal. Murphy, 12-649 at p. 10, 116 So. 3d at 972. Accordingly, we reject the Huberts' contention that the trial court improperly considered and ruled on the City/Parish's motion for summary judgment in this matter.
As to the second issue raised in this appeal, the Huberts contend that the trial court erred in granting the City/Parish's motion for summary judgment because they have evidence that would prove that they sustained injury as a result of the City/Parish's accusation against Mr. Hubert. Further, they assert that the trial court's declaration that it was "highly questionable as to whether the statements in the article rise to the level of defamation" establish that a genuine issue of material fact exists that should have precluded summary judgment.
It is well settled that an appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. GameStop, Inc. v. St. Mary Parish Sales and Use Tax Department, 14-0878, p. 6 (La. App. 1st Cir. 3/19/15), 166 So. 3d 1090, 1094, writ denied, 15-0783 (La. 6/1/15), 171 So. 3d 929. On a motion for summary judgment, the burden of proof is on the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Further, as this matter comes before us on review of a summary judgment, no deference is given to the findings or reasoning of the trial court, as we must consider the matter de novo. See King v. Allen Court Apartments II, 15-0858, p. 5 (La. App. 1st Cir. 12/23/15), 185 So. 3d 835, 839, writ denied, 16-0148 (La. 3/14/16), 189 So. 3d 1069.
Prior to amendment by 2015 La. Acts, No. 422, § 1.
For the purposes of summary judgment, a fact is material if it is essential to a cause of action under the applicable theory of recovery. Generally speaking, material facts are those that insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of a legal dispute. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be determined only in light of the substantive law applicable to that particular case. Mabile's Trucking, Inc. v. Stallion Oilfield Services, Ltd., 15-0740, p. 7 (La. App. 1st Cir. 1/8/16), 185 So. 3d 98, 102, writ denied, 16-0251 (La. 4/4/16), 190 So. 3d 1207.
To prevail on a claim of defamation, a plaintiff bears the burden of affirmatively proving: (1) a false and defamatory statement; (2) an unprivileged publication to a third party; (3) negligence (as set forth in the Restatement (Second) Of Torts § 580B) on the part of the publisher; and (4) resulting injury. If even one of these required elements is found lacking, the cause of action fails. See Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 16 (La. 7/10/06), 935 So. 2d 669, 681.
In its motion for summary judgment, the City/Parish alleged that the statements made by Mr. Newkirk were true and that "Mr. Hubert suffered no damages as a result of the newspaper article in that he received no medical treatment nor has he sought employment since retiring from the City/Parish." (R. 65) Basically, the City/Parish asserted that Mr. Hubert would be unable to prove (1) that the statements made were not true, (2) that the statements were made with malice, or (3) that Mr. Hubert suffered any resulting injury. In support of its motion, the City/Parish offered the deposition testimony of Mr. Hubert and the affidavit of Mr. Newkirk, the person who published the allegedly defamatory statements to local news media.
In his deposition, Mr. Hubert testified that news accounts that accused him of owning and having City/Parish workers and equipment at a 45th Street address were not true. During his deposition, he was asked to read aloud the content of the objectionable newspaper article and stated the following:
Although a copy of what appears to be an electronic version of the newspaper article appears in the record before us, we observe that the article is not certified nor accompanied by an affidavit attesting to its authenticity. --------
Two City Parish Department of Public Works employees have been suspended for allegedly using City Parish - City resources to clear private property during regular business hours. ... DPW director Peter Newkirk said Thursday. It looks like they were clearing some wooded property that one of them owned Newkirk said. They identified the two supervisors as Leroy Hubert and Michael Ferry, both long-time City Parish employees assigned to the waste water collection division on Chippewa Street. We suspended them with pay pending investigation Newkirk said. He said City employees observed the work being done in Eden Park near 45th Street and reported it to City Parish officials. Newkirk said it appears a dozer or a loader and staff might have been used to do the work. If the allegations against the two prove true, Newkirk said we definitely recommend
termination and possibly ask for reimbursement. He said the two were notified Thursday morning of their suspension.
Throughout the remainder of his deposition, Mr. Hubert disputed the accuracy of the statement "near 45th Street," as the property he owned was on 48th Street. And while Mr. Hubert eventually acknowledged that City/Parish employees and equipment were used in association with the clearing of the lot he owned on 48th Street, he argued that "[t]hey removed debris off the servitude. Not off my property." Hence, he contended that "[n]othing illegal" was done.
In his affidavit, Mr. Newkirk declared the following:
After a full investigation was conducted[,] it was determined that Mr. Hubert was in violation of DPW rules, a pre-termination hearing was held regarding Mr. Hubert's use of City/Parish equipment and employees for personal affairs during work hours in violation of [DPW] Employee Work Rule I, Unacceptable Acts or Actions by Employees, Section A, Dishonesty, Subsection 7.
Mr. Hubert was found to be in violation of that rule, however, before disciplinary action could be carried out[,] Mr. Hubert executed retirement papers.
Mr. Hubert, through his counsel, requested that he be allowed to retire and have the pre-termination notice removed from his personnel file, and the City/Parish complied with his request.
Statements made to the press were not false, however, the location was on 48th Street near Eden Park. [Numbered bullets omitted.]
In his deposition, Mr. Hubert acknowledged that he was suspended with pay pending investigation and that he was given a pre-termination notice and a pre-termination hearing, which he attended with counsel. He contended that he "didn't make an agreement with the City to retire [voluntarily] or anything concerning any proceedings that took place," but admitted "I planned to retire because they were trying to set me up. ... I was trying not to get myself in the position for them to use anything against me that would interfere with my retirement or any kind of medical benefits or anything that were due me."
According to Mr. Hubert, he submitted his retirement papers after he received notice of his suspension, but he intended to withdraw the retirement application and complete the five years of "drop" for which he had originally signed up. He stated that when the City/Parish refused to issue a decision following the pre-termination hearing, however, he did not withdraw his retirement papers. He said that he construed a letter from Mr. Newkirk advising him that the City/Parish would resume disciplinary action against him if he decided not to retire to be a threat, and so he retired.
In opposition to the motion for summary judgment, the Huberts submitted the affidavit of Mr. Hubert in which he essentially asserted that the disciplinary action instituted by the City/Parish was based on false, hearsay evidence and reiterated statements made in his deposition that no work was performed on his property, but rather debris was collected from the city servitude after proper permissions were obtained for City/Parish employees and equipment to collect the debris.
Although Mr. Hubert stated in his deposition and in his affidavit that he did "nothing illegal," other than his own testimony, he offered no evidence to support his contention, such as documentary proof of his having appropriately obtained permission to have City/Parish employees use City/Parish equipment to remove the debris cleared from his property or affidavits from others who could attest that the debris was not collected from Mr. Hubert's property and/or that it was collected in conformity with City/Parish rules and regulations. Affidavits with conclusory allegations of fact that are devoid of specific facts are not sufficient to defeat summary judgment. See Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633, p. 16 (La. 4/23/10), 35 So. 3d 1053, 1062.
And while Mr. Hubert makes much of the fact that news accounts of the activity erroneously stated that the property was located "near 45th Street" as opposed to 48th Street, he has not shown how this fact alone is in anyway defamatory. Defamatory words are, by definition, words that tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Words that convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Costello v. Hardy, 03-1146, p. 13 (La. 1/21/04), 864 So. 2d 129, 140. We cannot perceive, nor has Mr. Hubert shown, how indicating that he owned property near 45th Street, when in fact he owned property on 48th Street, could be considered as conveying disgrace, dishonesty, or disrepute. Rather, the only basis on which the Huberts' claim of defamation could stand is in regards to the allegation that he had wrongly used City/Parish resources to clear private property during regular business hours,
As the Huberts, and not the City/Parish, would bear the burden of proof at the trial on the claim of defamation, in its motion for summary judgment, the City/Parish was only required to point out the absence of factual support for one or more elements essential to the Huberts' claim of defamation. In this case, the City/Parish pointed out that the Huberts would be unable to prove the disciplinary allegations made by the City/Parish were false. Additionally, the evidence presented by the City/Parish and the Huberts indicate that Mr. Hubert choose to retire rather than stand "pat and fight" the disciplinary action, despite his contention that the accusations were false. See Russell v. Mosquito Control Board, 06-0346, pp. 10-13 (La. App. 4th Cir. 9/27/06), 941 So. 2d 634, 641-42 (in which the court rejected the plaintiff's assertion that his decision to retire rather than face disciplinary action was not a voluntary action).
As previously discussed, other than Mr. Hubert's own self-serving statements, the Huberts offered no evidence to show that the statement that Mr. Hubert had used City/Parish resources to clear private property during regular business hours was false. In their brief on appeal, the Huberts argue that the record shows that they requested subpoenas for trial witnesses, and in his affidavit, Mr. Hubert alleged that "he had documents, evidence and testimony to present at trial that would prove his allegations." However, as the burden of proof had shifted to the Huberts on the motion for summary judgment, their mere reference to proof of factual support was insufficient; they were required to produce factual support and not simply allude to having it. See La. C.C.P. art. 966(C)(2), prior to amendment by 2015 La. Acts, No. 422, § 1.
Consequently, as the evidence presented by the Huberts was insufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial on the issue of falsity, we find no genuine issue of material fact was shown so as to preclude the granting of the motion for summary judgment in this matter. See Kennedy, 05-1418 at p. 16, 935 So. 2d at 681 (recognizing that if even one of the elements required for a claim of defamation is found lacking, the cause of action fails). Accordingly, we reject the second issue raised by the Huberts in this appeal and the additional arguments associated therewith.
CONCLUSION
For the foregoing reasons, we find the trial court properly granted summary judgment dismissing the appellants' claim of defamation against the City of Baton Rouge, Parish of East Baton Rouge, Department of Public Works and Peter Newkirk, in his official capacity as Director of the Department of Public Works, and thus hereby affirm. All costs of this appeal are cast to the appellants, Leroy and Elleanor Hubert.
AFFIRMED.