Opinion
2018 CA 0009
04-23-2019
MELVIN BINOOM v. DONNIE M. KIRBY, HUEY'S BAR, L.L.C., ABC INSURANCE COMPANY, & DEF INSURANCE
Jonathan E. Mitchell Michael C. Palmintier Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Melvin Bindom Gregory T. Stevens Shelton Dennis Blunt Kelly Kromer Boudreaux Jack B. Stanley Baton Rouge, Louisiana Counsel for Defendants/Appellees Higbee Lancoms, LP and Derrick Zmarquest McNeil
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket No. C634059 Honorable Donald R. Johnson, Judge Presiding Jonathan E. Mitchell
Michael C. Palmintier
Baton Rouge, Louisiana Counsel for Plaintiff/Appellant
Melvin Bindom Gregory T. Stevens
Shelton Dennis Blunt
Kelly Kromer Boudreaux
Jack B. Stanley
Baton Rouge, Louisiana Counsel for Defendants/Appellees
Higbee Lancoms, LP and Derrick
Zmarquest McNeil BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ. McCLENDON, J.
In this suit for defamation, the plaintiff appeals the trial court judgment that granted the defendants' motion for summary judgment and dismissed the plaintiff's claims with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 10, 2013, Deputy David Moran, Jr., a reserve deputy with the East Baton Rouge Parish Sheriff's Office, was working a detail at the Dillard's department stores at the Mall of Louisiana. While in the women's store in the mall, Deputy Moran was notified by Dillard's loss prevention department that there was a person being monitored for shoplifting at the other Dillard's store. He began walking toward the other store and was notified that a theft was in progress and that the suspect was going out the door with a set of pots and pans without paying for them. Deputy Moran was given a description of the suspect and the clothes he was wearing. He went to the parking lot, got in his marked patrol vehicle, and proceeded towards the door he was told the suspect exited. As he turned down the parking aisle towards the exit, Deputy Moran saw a white vehicle approaching him driven by a man matching the description given to him. Deputy Moran turned on his lights and siren, but rather than stop, the driver went around the deputy's vehicle. The driver had his window rolled down, and as he passed, he looked at Deputy Moran, who told the driver to stop. The driver failed to comply. Deputy Moran pursued the driver with his lights and siren on and observed him as he failed to stop at a stop sign exiting the parking lot, ran a red light before getting on Interstate 10 westbound, caused several vehicles to swerve to avoid hitting him, changed lanes without signaling, and swerved in and out of traffic. Deputy Moran was able to pull alongside the vehicle on the interstate, obtain a good look at the driver, and motion him to pull over. The driver ignored Deputy Moran's request. When Deputy Moran reached the area of the Acadian Thruway exit, he was advised by his supervisor to terminate the pursuit.
Dillard's occupies two different locations in the Mall of Louisiana.
At some point, Deputy Moran was told by someone in the loss prevention department that the suspect in the theft from Dillard's might be Melvin Bindom, who had a history of theft at Dillard's and had been banned from the store. After his return to Dillard's, Deputy Moran ran Mr. Bindom's name in a database for Louisiana driver's license and identification information used by law enforcement personnel. The database contained a photograph of Mr. Bindom, as well as his criminal record. Deputy Moran believed the person in the photograph was the same person he had pursued on the interstate.
Thereafter, Deputy Moran viewed Dillard's surveillance footage showing the person who shoplifted the pots and pans from the store and exited into the parking lot. Deputy Moran observed that the suspect in the video was wearing the same clothing as the person he encountered in the parking lot and pursued on the interstate. The suspect also exited the store in the same area where Deputy Moran first saw him.
Deputy Moran filled out an arrest report following the incident, in which he listed several offenses, including theft of goods. He then filled out an affidavit for an arrest warrant, which was issued. Mr. Bindom was subsequently arrested and placed into custody on October 4, 2013. Deputy Moran also went to the prison on October 14, 2013, to interview Mr. Bindom and confirmed that Mr. Bindom was the same person in the vehicle he pursued from Dillard's.
Mr. Bindom told Deputy Moran that he did not steal anything and that it was his brother who stole the merchandise from Dillard's. Deputy Moran then located and interviewed Mr. Bindom's brother. Deputy Moran believed that it was not Mr. Bindom's brother whom he had pursued, but rather Melvin Bindom.
At Mr. Bindom's criminal proceeding, Deputy Moran was advised by the assistant district attorney that the State was not going to prosecute the case. The assistant district attorney noted on the bill of information that after "review of [the] video from Dillard's ... and after consultation with deputy and LPO - cannot prove [defendant's] identity as the thief beyond a reasonable doubt." (R. p. 297). Mr. Bindom was released from jail on February 12, 2014.
Thereafter, on October 3, 2014, Mr. Bindom filed a Petition for Damages against several defendants, including Higbee Lancoms, LP, as the owner and operator of Dillard's (Higbee), and Derrick Zmarquest McNeil, an employee of Dillard's in the loss prevention department. In his petition for damages, Mr. Bindom alleged that Higbee and Mr. McNeil were negligent in that they failed to exercise due care in ascertaining the identity of the subject of a criminal complaint; failed to properly review security footage prior to making a criminal complaint; failed to communicate all necessary and proper information to law enforcement officials during a criminal investigation; and failed, generally, to maintain the standard of care required. Mr. Bindom also asserted that Higbee was vicariously liable for the negligent acts of its employee, Mr. McNeil, performed in the course and scope of his employment. Mr. Bindom claimed that, as a result of the defendants' actions, he suffered damages for "extreme emotional distress, public embarrassment and humiliation, loss of enjoyment of life, and deprivation of constitutionally-protected rights."
Higbee and Mr. McNeil answered the petition, asserting several affirmative defenses, including qualified immunity for those who report suspected criminal activity. Thereafter, they filed a motion for summary judgment. Following the hearing on the motion, the trial court took the matter under advisement. On July 19, 2017, the trial court signed a judgment granting the motion for summary judgment on behalf of Higbee and Mr. McNeil and dismissing all of Mr. Bindom's claims against them. Mr. Bindom has appealed the judgment of the trial court, asserting that the trial court erred in granting summary judgment.
DISCUSSION
After adequate discovery, a motion for summary judgment is properly granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966A(3). The mover bears the burden of proving that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. LSA-C.C.P. art. 966D(1). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966D(1); Holmes v. Lea, 17-1268 (La.App. 1 Cir. 5/18/18), 250 So.3d 1004, 1009.
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Holmes, 250 So.3d at 1009.
Because of their chilling effect on the exercise of freedom of speech, defamation actions have been found particularly susceptible to summary judgment. Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669, 686; Cook v. American Gateway Bank, 10-0295 (La.App. 1 Cir. 9/10/10), 49 So.3d 23, 31. Summary judgment, being favored in the law, is a useful procedural tool and an effective screening device to eliminate unmeritorious defamation actions that threaten the exercise of First Amendment rights. Kennedy, 935 So.2d at 686; Cook, 49 So.3d at 31.
Defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 139; Barber v. Willis Communications, Inc., 17-0658 (La.App. 1 Cir. 12/29/17), 241 So.3d 471, 475. 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. Kennedy, 935 So.2d at 674. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Id. Further, if even one of the elements is found lacking, the cause of action fails. Kennedy, 935 So.2d at 681.
By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule. In Louisiana, defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Words 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 or circumstances, are considered defamatory per se. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. Kennedy, 935 So.2d at 674-75. When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Kennedy, 935 So.2d at 675.
Privilege is a defense to a defamation action. Barber, 241 So.3d at 476; Cook, 49 So.3d at 33. The defense is based on the principle that as a matter of public policy, in order to encourage free communication in certain defined circumstances, a person is sometimes justified in communicating defamatory information to others without incurring liability. Kennedy, 935 So.2d at 681.
Privileged communications may be either absolute (such as statements by judges in judicial proceedings or legislators in legislative proceedings) or "conditional or qualified." Kennedy, 935 So.2d at 681; Cook, 49 So.3d at 33. The basic elements of a conditional or qualified privilege are good faith, an interest to be upheld, a statement limited in scope to that interest, a proper occasion for the communication of the statement, and publication in a proper manner to only the proper parties. Kennedy, 935 So.2d at 681; Cook, 49 So.3d at 33.
The analysis of whether a communication is protected by a conditional privilege requires a determination as a matter of law whether the circumstances in which the communication was made satisfy the legal requirements for invoking the privilege, and a determination of whether the privilege was abused, which requires a factual determination that malice or lack of good faith existed. Barber, 241 So.3d at 476; Cook, 49 So.3d at 33. Louisiana courts have recognized that the public has an interest in possible criminal activity being brought to the attention of the proper authorities and have extended a qualified or conditional privilege to reports made in good faith. Kennedy, 935 So.2d at 683; Cook, 49 So.3d at 34.
The practical effect of the assertion of the conditional or qualified privilege is to rebut the plaintiff's allegations of malice or fault and to place the burden of proof on the plaintiff to establish abuse of the privilege. Kennedy, 935 So.2d at 683. It is then incumbent on the plaintiff to come forward with evidence establishing the defendant abused the privilege by making the statement with knowledge of falsity or reckless disregard for the truth. Kennedy, 935 So.2d at 687. To establish reckless disregard for the truth, the plaintiff must prove that the statement was deliberately falsified, published despite the defendant's awareness of probable falsity, or the defendant in fact entertained serious doubts as to the truth of the statement. Barber, 241 So.3d at 477; Cook, 49 So.3d at 34. Even proof of gross negligence in the publication of a false statement is insufficient to prove reckless disregard under this standard. Kennedy, 935 So.2d at 688. Rather, the plaintiff is required to produce evidence that the defendant was highly aware the statements were probably false. Id.
In their motion for summary judgment, Higbee and Mr. McNeil asserted that, although Mr. Bindom's allegations in his petition were not clearly pled, he could not establish the elements for a claim of defamation. In support of their motion, Higbee and Mr. McNeil offered the deposition of Deputy Moran and Mr. Bindom's responses to Requests for Admission. The responses established that Mr. Bindom had previously been arrested at Dillard's and that he was banned from the store. The defendants maintained that Deputy Moran's deposition established that the communications by the defendants to Deputy Moran were subject to the qualified privilege of immunity, as there was no evidence to establish reckless disregard for the truth.
In this appeal, Mr. Bindom has only briefed and argued a cause of action based on a defamation claim. Therefore, we decline to address any other possible causes of action. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4B(4).
In opposing the motion for summary judgment, Mr. Bindom asserted that he was arrested because he was identified by Higbee's loss prevention department and reported by name to Deputy Moran as the perpetrator of the theft. He submitted a copy of the bill of information, with the dismissal of charges noted thereon, and excerpts from his deposition. Mr. Bindom maintained that he did not commit the theft and was not at Dillard's on the date of the offense. Therefore, he urged that, because of the defendants' reckless misidentification, any qualified privilege must fail. The trial court disagreed, finding no genuine issue of material fact and granting summary judgment in favor of the defendants.
In his appeal, Mr. Bindom first asserts that summary judgment was not appropriate because a determination of subjective facts, such as intent, motive, knowledge, malice, and good faith, was necessary, and there was evidence to show the defendants' reckless disregard for his rights. Mr. Bindom urges that there was no qualified privilege as to his misidentification by Higbee employees because there was no reasonable basis for the employees to identify Mr. Bindom as the perpetrator of the theft. Therefore, he argues, the determination of the intent and malice of the employees for singling out Mr. Bindom is a question of fact inappropriate for summary judgment.
Upon our de novo review, we find that the defendants sufficiently pointed out that Mr. Bindom would not be able to prove the elements of a defamation claim. Particularly, they pointed out that Mr. Bindom could not establish that the defendants made any statements to Deputy Moran that they knew to be false or that the defendants acted with reckless disregard or negligently failed to ascertain the truth. Therefore, the burden then shifted to Mr. Bindom to carry his burden of proving that he would be able to establish the existence of a genuine issue of material fact or that Mr. Bindom was not entitled to judgment as a matter of law. However, Mr. Bindom failed to present any evidence that, at the time of the communication to Deputy Moran, the defendants knew that their report that the suspect might be Mr. Bindom was false. It was Mr. Bindom's burden to show knowledge of falsity or reckless disregard for the truth in a report of suspected criminal activity to law enforcement officers. Having failed to do so, he failed to establish abuse of the qualified or conditional privilege. Accordingly, Mr. Bindom failed to establish that Higbee and Mr. McNeil were not protected by the privilege.
Mr. Bindom further maintains that the trial court erred in considering hearsay testimony on summary judgment. He argues that Deputy Moran's deposition testimony is inadmissible hearsay and should be stricken. We also find no merit to this argument. Louisiana Code of Civil Procedure article 966A(4) specifically provides that "[t]he only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." Moreover, we find that the deposition testimony of Deputy Moran was not offered to prove the matter asserted, that is, that the suspect was in fact Mr. Bindom. The evidence establishes that Deputy Moran was told that the suspect might be Mr. Bindom, but Deputy Moran conducted his own investigation and reached his own conclusion as to the identity of the perpetrator of the theft. We do not find that Deputy Moran's deposition testimony was inadmissible hearsay.
Louisiana Code of Evidence article 801C defines "hearsay" as "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." --------
Based on the foregoing, we conclude that the trial court was correct in granting summary judgment in favor of Higbee and Mr. McNeil, dismissing Mr. Bindom's claims against them.
CONCLUSION
After a thorough de novo review of the record before us, we affirm the July 19, 2017 judgment of the trial court in favor of the defendants, Higbee Lancoms, LP and Derrick Zmarquest McNeil. Costs of this appeal are assessed to the plaintiff, Melvin Bindom.
AFFIRMED.