Opinion
No. 2009 CA 1449.
March 26, 2010.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, LOUISIANA TRIAL COURT NUMBER 569,847 HONORABLE WILLIAM A. MORVANT, JUDGE PRESIDING.
Donald Britton, Baker, LA, Plaintiff/Appellant, Pro Se.
A. Justin Ourso III, Christopher D. Martin, Baton Rouge, LA, Counsel for Defendants/Appellees, Louisiana Business Incorporated, Charles Hustmyre, Rolfe McCollister, Jr., Mike Eckstein, and Julio Melara.
BEFORE: WHIPPLE, HUGHES, AND WELCH, JJ.
This is an appeal from a trial court judgment granting the defendants' limited motion for a new trial to increase the amount of attorney fees awarded pursuant to LSA-C.C.P. art 971. For the reasons that follow, we reverse.
FACTS AND PROCEDURAL HISTORY
In a July 2008 edition of 225 Magazine, an article written by "Chuck Hustmyre" was published that purported to expose certain matters involving the Louisiana Department of Health and Hospitals ("DHH") and nonprofit counseling organizations associated with Donald Britton. On August 15, 2008 the instant suit was filed by Mr. Britton alleging the article contained "lies, rumor and gossip" about him. In his petition, Mr. Britton characterized the 225 Magazine article about him as retaliatory, for his failure to yield to author Charles (Chuck) Hustmyre's July 2009 "demands" for the disclosure of financial records related to the Community Resource Services organization, of which he was President/Executive Director. Mr. Britton alleged that Mr. Hustmyre maliciously caused lies to be published about him "for the purpose of causing financial, economic and social damages." The other named defendants were alleged to have provided the "vehicle" and/or assisted Mr. Hustmyre "in spreading lies, rumor and gossip for the purpose of defaming, slandering and ruining [his] reputation and [his] career."
Mr. Britton is not an attorney, but he is representing himself in this litigation.
In response to this suit, the defendants filed a special motion to strike, based on the authority of LSA-C.C.P. art 971, asserting that Mr. Britton was unable to establish a "probability of success" as required by Article 971, and therefore his suit should be dismissed. Following a hearing on the motion, held by the trial court on January 5, 2009, judgment was rendered (and later signed on March 2, 2009) in favor of the defendants, dismissing the action and ordering Mr. Britton to pay court costs and $2,500.00 in attorney fees to the defendants.
On January 8, 2009 Mr. Britton filed a motion for rehearing and to set aside the judgment, which also sought recusal of the presiding judge. A February 18, 2009 hearing on Mr. Britton's motion to recuse the presiding judge was held before another judge of the trial court, and the motion was denied.
On February 25, 2009 Mr. Britton filed an appeal, which was subsequently dismissed by this appellate court as abandoned. See Britton v. Hustmyre, 2009-0567 (La. App. 1 Cir. 6/8/09) (unpublished).
Although Mr. Britton stated, during the appellate oral argument of this case on February 25, 2010, that he had not filed three appeals in the underlying trial court suit, the trial court record contains three separate motions for appeal, filed, respectively, on February 25, 2009, March 11, 2009, and May 18, 2009. The motion for appeal, filed on February 25, 2009, was granted by the trial court on February 27, 2009, and the record was lodged with this court on March 27, 2009. However, Mr. Britton filed no appellate brief, and the appeal was dismissed as abandoned by order of this court dated June 8, 2009. We note that the motion for appeal, filed February 25, 2009, did not specify which trial court judgment was being appealed and, at that time, the trial court had rendered two judgments: one on January 5, 2009 (granting the defendants' special motion to strike), which had not yet been signed by the court; and another judgment rendered on February 18, 2009 (denying the plaintiff's motion to recuse), which was signed on February 25, 2009. In light of Mr. Britton's February 25, 2010 statements to this court, it is apparent that his March 11, 2009 motion for appeal was intended as a revision of the February 25, 2009 motion for appeal, so as to clearly indicate his intent to appeal the January 5, 2009 judgment.
Thereafter, on March 2, 2009, judgment was rendered and signed, denying Mr. Britton's motion for rehearing and to set aside the January 5, 2009 judgment. In the March 2, 2009 judgment, the presiding judge stated that Mr. Britton had failed to set forth any basis in law or in fact that would warrant a rehearing or new trial within the authority of LSA-C.C.P. arts. 1972 or 1973.
On March 11, 2009 the defendants filed a motion for new trial "limited to the amount of the defendants' attorneys' fees awarded pursuant to its successful special motion to strike under Article 971," and seeking an increase in the amount of attorney fees awarded. Also on that date, Mr. Britton filed a motion for appeal of the judgment rendered on January 5, 2009 and signed on March 2, 2009. On March 13, 2009 Mr. Britton filed an objection to the defendants' request for a new trial, asserting: he had been denied a new trial for the same reasons now asserted by the defendants; the defendants were receiving preferential treatment; the defendants were not entitled to even the initial $2,500.00 award of attorney fees; the defendants' request for an increase of the attorney fees awarded to over $30,000.00 was "totally ridiculous"; and a new trial should encompass all issues in the case and not just the amount of attorney fees.
In the defendants' brief in support of their motion for new trial, the defendants stated that they "were not prepared to present evidence regarding their attorneys' fees at the January 5 hearing and informed the court that [they had] anticipated that the court would hold a later hearing on attorney's fees. The court was ready to decide the issue, and based upon the efforts reflected on the record, the court awarded the defendants $2,500.00 in attorneys' fees." The defendants further argued that the amount awarded was substantially less than the fees actually incurred "to investigate, research and file the special motion to strike and memorandum in support, and to prepare for and attend the hearing." Defendants also sought attorney fees incurred since the hearing on the LSA-C.C.P. art. 971 hearing. Defendants urged the trial court to use its considerable discretion under LSA-C.C.P. art. 1973 to grant a new trial for the purpose of reconsidering the amount of attorney fees awarded. In support of the motion for new trial, the defendants submitted the affidavit of counsel, A. Justin Ourso III, verifying an attached ledger and invoices showing the defendants had been billed, between October 14, 2008 and March 11, 2009, a total of $33,065.65 in attorney fees and costs.
A decision in this appeal has also been rendered by this court. See Britton v. Hustmyre, 2009-0847 (La. App. 1 Cir. 3/26/10) (unpublished).
After a May 4, 2009 hearing on the defendants' limited motion for new trial, the trial court signed a final judgment on May 27, 2009, granting the motion for new trial in part, vacating the March 2, 2009 judgment "only with respect to the amount of attorneys' fees awarded," and ordering Mr. Britton to pay defendants "$17,723.00 in reasonable attorneys' fees, plus $450.00 for the court costs of defendants." The judgment further ordered that "the rest of the March 2, 2009, judgment remains in effect and unchanged by this final judgment."
Mr. Britton has appealed this judgment, and on appeal, asserts the following assignments of error:
1. A rational trier of fact could not conclude that [LSA-C.C.P. art. 971] has any relevance in this case since it refers to public and political figures[,] which the appellant is neither.
2. [LSA-C.C.P. art. 971] was not intended to be a vehicle whereby any media can spread falsity, lies and defamation about citizens of the State of Louisiana with immunity from due process of law and law suits [sic].
3. Plaintiff['s] rights [sic] to due process of law dictates [sic] that on a new trial or rehearing both part[ies] should have the right to enter evidence, witnesses and be treated fairly.
4. The defendant[s] should not be awarded any attorney fees[.]
5. The defendant[s] being awarded a judgment against appellant for attorney fees of $17[,]000.00 after being awarded $2[,]500.00 in a final judgment which was on appeal. [Sic.]
6. The presiding judge presented himself as bias[ed] and prejudice[d] toward pro se litigant. He has attempted to obstruct justice, conspire with defendants, extort money, harass, intimidate, threaten and disrespect plaintiff.
7. The presiding judge should have recused himself when his conduct became questionable.
Defendants have filed an answer to Mr. Britton's appeal, seeking a further increase in the amount of attorney fees awarded.
LAW AND ANALYSIS
Initially, we note that Mr. Britton submitted exactly the same assignments of error in this appeal as in the companion appeal, Britton v. Hustmyre, 2009-0847, in which this court addressed and ruled on assignments of error numbers 1, 2, 6, and 7, in full, as well as addressing and ruling on assignment of error number 3 insofar as it related to the motion for new trial Mr. Britton filed in the trial court. Therefore, with respect to the instant appeal we need only address assignment of error number 3, insofar as it relates to the motion for new trial filed by the defendants in the trial court, and assignments of error numbers 4 and 5.
Propriety of Award of Attorney Fees
Mr. Britton contends no award of attorney fees should have been made to the defendants in this case. However, LSA-C.C.P. art. 971(B) mandates that "a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs." The defendants prevailed on the Article 971 special motion to strike and were therefore entitled to an award of reasonable attorney fees and costs.
Propriety of Granting a New Trial in Favor of Defendants
We construe Mr. Britton's assignments of error, applicable to this appeal, and arguments briefed in support thereof to contend that the trial court erred in granting a new trial in favor of the defendants. In ruling to increase the amount of attorney fees awarded, the trial court reasoned:
[B]ack in January the Court granted the special motion to strike under [A]rticle 971. Subsection B of that provision indicates that the prevailing party shall be awarded reasonable attorney's fees and costs. At the conclusion, and this is the only reason I set this matter for a hearing, at the conclusion of the hearing back in January, the defendant[s] asked for a subsequent rule on attorney's fees to be set at a later date and requested an opportunity to present evidence at that later date. At that time, I made a ruling, awarding attorney's fees in the amount of $2,500.00. Subsequently, this motion for new trial was filed only on the issue of attorney's fees under [Article] 971, which the Court set for hearing today. According to the motion that was filed, the defendants seek attorney's fees in the amount of $30,566.00, as well as associated costs in the amount of $2,499.56, bringing a total of $33,065.65. Attached to the motion for new trial is the affidavit of Mr. Ourso, as well as a ledger history report and invoices, and I show from October 14, `08, to February 28 of `09. As I went through the attachments, the invoices, it appears that some of the work at the outset was for things done prior to the preparation of the special motion to strike. There was some conflict checks; apparently there [was] a review of other lawsuits that Mr. Britton was either a party to or had filed; there was a motion for extension of time; and there were other matters which predate the filing of a response and predate the filing of a special motion to strike. What I did was to go through each month's entries, and the information that I thought was specifically for the special motion to strike as opposed to either the motion for extension, answer, other matters, I totaled those up, both the fees and the costs, to determine what I thought would be reasonable under [Article] 971(B). And it appears in October of 2008 there were fees of $1,505.50, and it looks like costs associated with this of $19.50; for November of 2008, $9,125.00, costs in the amount of $314.50; December of 2008, $3,682.50, costs of $75.00; January of 2009, fees in the amount of $3,410.00, costs in the amount of $41.00. A lot of what takes place after January 5 of 2009 pertains to the motion to recuse and other matters that I would say are tangential to this motion, but not directly. So for the purposes of the motion to strike and the motion for new trial, the Court will grant the motion. I will increase the attorney's fees to the amount of $17,723.00, court costs . . . of $450.00, as well as all costs associated with filing the motion for new trial. . . . Because a lot of what I saw after that date was associated, like I said, somewhat with the motion to strike, but for the motion to recuse and other motions, and I don't think [Article] 971(B) would encompass that. . . . So I'm going to limit it to what I think is directly associated with the motion to strike.
The bases for granting a new trial are set forth in LSA-C.C.P. arts. 1971— 1973, which provide as follows:
Art. 1971. Granting of new trial
A new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only. If a new trial is granted as to less than all parties or issues, the judgment may be held in abeyance as to all parties and issues.
Art. 1972. Peremptory grounds
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.
Art. 1973. Discretionary grounds
A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.
A trial court has much discretion in determining whether to grant a motion for new trial and its action should not be reversed on appeal unless there has been an abuse of discretion. Wright v. Bennett, 2004-1944, p. 21 (La. App. 1 Cir. 9/28/05), 924 So.2d 178, 191 (citing Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, p. 44 (La. App. 1 Cir. 3/11/94), 634 So.2d 466, 493, writ denied, 94-0906 (La. 6/17/94), 638 So.2d 1094).
In granting the defendants' motion for new trial in this case, the trial court seemingly relied on LSA-C.C.P. art. 1973 and found a "good ground therefor." The reason stated by the trial court in granting a new trial in this case was that "the defendant[s] asked for a subsequent rule on attorney's fees to be set at a later date and requested an opportunity to present evidence at that later date." The court's additional comments, on granting the motion for new trial, lead to an inference that because the documentation of attorney fees charged by counsel to defendants greatly exceeded the $2,500.00 originally awarded as reasonable attorney fees, a new trial to reconsider that amount was warranted. We do not agree.
We find an interchange between the trial court and the defendants' counsel, during the January 5, 2009 hearing on the defendants' LSA-C.C.P. art. 971 special motion to strike, significant. After dismissing Mr. Britton's suit under Article 971, the trial court ruled that the defendants were entitled to attorney fees and costs, pursuant to Paragraph B of Article 971, as the prevailing party on the motion. The court then stated, "I have not received anything to date as to what the attorney fees incurred in connection with this matter are. Is there an affidavit to be submitted to the Court?" Defendants' counsel replied, "No, Your Honor. We would ask to have a rule to show cause. If the Court decides to award attorney fees, we would ask for a rule to show cause later in which we would present that evidence." Mr. Britton objected to the defendants' request to be allowed to present evidence on the attorney fees issue at a later date. The court then asked the defendants' counsel if he could give "an idea of how much time [had] been incurred in the preparation of the special motion to strike." Defendants' counsel responded, "Not off the top of the head, Your Honor, but if Your Honor wishes to do it on the basis of Your Honor's experience in matters of this nature and the memorandum, we'd be happy to accept that, Your Honor."
We conclude that the subsequent grant of a new trial to reconsider the amount of attorney fees awarded was unwarranted, particularly when plaintiff Donald Britton was denied a new trial when he had been unprepared to bear his burden of proof on the special motion to strike. See Britton v. Hustmyre, 2009-0847. Clearly defendants' counsel had evidence available to him on the issue of the amount of attorney fees billed to defendants, which could have been presented at the January 5, 2009 special motion to strike hearing. This fact was reflected by billing documents subsequently submitted with the defendants' motion for new trial. These billing documents showed that defense counsel had billed the defendants, as of the time of the January 5, 2009 hearing, attorney fees totaling $24,115.00 and costs totaling $803.10 via bills issued on December 3, 2008 and December 16, 2008. Under these circumstances, we deem the grant of a new trial in May of 2009 to defendants, in order to prove their attorney fees, was an abuse of the trial court's discretion.
We note that our reversal of the grant of the new trial effectively reinstates the trial court's original January 5, 2009 ruling (signed as a final judgment on March 2, 2009), which awarded the defendants attorney fees in the amount of $2,500.00.
Having decided the issue of attorney fees on this basis, we find it unnecessary to address Mr. Britton's remaining assignment of error, asserting that the May 27, 2009 award of $17,723.00 in attorney fees was in error.
CONCLUSION
For the reasons assigned, we deny the defendants' answer to this appeal and reverse the May 27, 2009 judgment granting a new trial in the defendants' favor as to the issue of attorney fees. All costs of this appeal are to be borne by defendants.