Opinion
2022 CW 0138
05-11-2022
ALAN RISHER, ROBERT A. BOURGEOIS, BRANDON BOURGEOIS, AND BUSINESS BROKERS OF LOUISIANA D/B/A SUNBELT BUSINESS BROKERS v. DOUG GORE AND LIFESTYLE, LLC
In Re: Doug Gore and Lifestyle, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. C- 706526.
BEFORE: WHIPPLE, C.J., PENZATO AND HESTER, JJ.
WRIT GRANTED IN PART WITH ORDER; DENIED IN PART. We reverse in part the September 8, 2021, judgment of the trial court that dismissed the defendants/relators' special motion to strike. We grant the Special Motion to Strike filed by the defendants/relators, Doug Gore and Lifestyle LLC, as to plaintiffs' claims against Doug Gore, for defamation and defamation per se. Relator/defendant, Doug Gore, has established that the speech complained of arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue. See Brandner v. Molonguet, 2014-0712 (La.App. 1st Cir. 12/23/14), 2014 WL 7332206. Consequently, the burden shifted to the plaintiffs, Alan Risher, Robert A. Bourgeois, Brandon Bourgeois, and Business Brokers of Louisiana d/b/a Sunbelt Business Brokers, to demonstrate a probability of success on their claims of defamation and defamation per se. See Thinkstream, Inc. v. Rubin, 2006-1595 (La.App. 1st Cir. 9/26/07), 971 So.2d 1092, 1100. In cases involving statements made on an issue of public concern, a plaintiff may not rely on any presumption that a statement is defamatory per se; rather a plaintiff "must prove all elements of his cause of action for defamation, including actual malice." Starr v. Boudreaux, 2007-0652 (La.App. 1st Cir. 12/21/07), 978 So.2d 384, 390. A statement of opinion relating to matters of public concern that does not contain a provably false factual connotation will receive full constitutional protection. Breen v. Holmes, 2016-1591 (La.App. 1st Cir. 12/7/17), 236 So.3d 632, 638. When considered in context, we conclude that a reasonable person considering Gore's statement expressing disagreement and frustration with the business practices of the plaintiffs in the particular forums in which they were made would not believe them to be anything other than Gore's subjective opinions expressing disagreement that plaintiffs were entitled to a commission on the lease at issue. Gore's statements are not actionable defamatory statements; rather, they are constitutionally protected statements of opinion. Because the plaintiffs have failed to establish a probability of success on their defamation claims, the special motion to strike should be granted as to these claims. See Breen, 236 So.2d at 640.
Accordingly, we dismiss the plaintiffs' claims against Doug Gore for defamation and defamation per se. Further, La. Code Civ. P. art. 971(B) mandates an award of attorney fees to the prevailing party. Accordingly, we remand this matter to the trial court to award reasonable attorney fees to Doug Gore. This writ application is denied in all other respects.
VGW
AHP
CHH