Jones v. Delta Fuel Co.

141 So. 3d 352, 2014 WL 2199833, 2014 La. App. LEXIS 1390
CourtLouisiana Court of Appeal
DecidedMay 28, 2014
DocketNo. 48,885-CA
StatusPublished
Cited by3 cases

This text of 141 So. 3d 352 (Jones v. Delta Fuel Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Delta Fuel Co., 141 So. 3d 352, 2014 WL 2199833, 2014 La. App. LEXIS 1390 (La. Ct. App. 2014).

Opinion

STEWART, J.

11James M. Jones, Jr., also known as Mike Jones (“Jones”), appeals the district court’s judgment that granted Delta Fuel Co. Inc.’s (“Delta Fuel”) special motion to strike. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2009, Mike Jones Flying Service, Inc., became indebted to Delta Fuel in the amount of $8,702.46. Delta Fuel’s counsel sent three certified letters to Jones Flying Service, Inc., to the following address in an attempt to recover the debt:

Jones Flying Service, Inc.

Mike Jones P.O. Box 156 Epps, Louisiana 71237

Jones signed for each letter, but failed to make any attempt to contact Delta Fuel, or to satisfy the debt.

After Jones failed to respond, Delta Fuel filed suit against Jones Flying Service to collect the money owed on August 31, 2009. Delta Fuel requested service as follows:

JONES FLYING SERVICE

401 Fortune Drive Monroe, Louisiana 71201

On September 15, 2009, service was personally made upon Jones Flying Service, Inc., by way of Diana Jones, Jones’s wife, at this address. This location is the Joneses’ residential address. Jones ignored the petition, and a default judgment was rendered against Jones Flying Service on January 26, 2010. On February 6, 2010, notice of judgment was personally served upon Diana for Jones Flying Service, Inc.

[2Pelta Fuel filed a motion seeking to perform a judgment debtor exam on Jones Flying Service. Jones Flying Service was issued an order to appear on July 2, 2010. Service was requested and personally made upon it, via Diana, at the previously mentioned address on May 14, 2010. Jones ignored the order.

After no one appeared for the July 2, 2010, judgment debtor exam, Delta Fuel filed a rule for contempt against Jones Flying Service on July 22, 2010. On August 16, 2010, Jones Flying Service was served, via Diana, with an order to appear at a hearing on the rule set for September 1, 2010. Again, no one appeared on its behalf for this hearing.

On September 10, 2010, Delta Fuel filed a second rule for contempt against Jones Flying Service. A second order to appear at a hearing on the rule was issued to “Mike Jones, Jones Flying Service,” directing Mike Jones to appear at a hearing set for November 8, 2010. On October 7, 2010, Jones was personally served with the order as follows:

[355]*355MIKE JONES JONES FLYING SERVICE 401 FORTUNE DRIVE MONROE, LA 71201

Jones did not respond to the rule for contempt, nor did he appear at the November 8, 2010, hearing. As a result, the district court issued a writ of attachment-bench warrant for the apprehension of Jones Flying Service, Inc., namely James M. Jones, for failure to appear at the hearing after having been personally served and ordered to appear according to the law. During the early morning of November 10, 2010, Jones was apprehended by the Ouachita Parish Sheriffs Office.

|sOn January 8, 2011, Jones filed a petition against Delta Fuel, seeking damages for his arrest pursuant to the writ of attachment. In turn, Delta Fuel filed a special motion to strike and a motion for summary judgment. The trial court granted Delta Fuel’s special motion to strike, and ordered Jones to pay court costs and attorney fees.

Jones appeals.

LAW AND DISCUSSION

In Jones’s sole assignment of error, he argues that the trial court erred in granting Delta Fuel’s special motion to strike, in dismissing his suit, and in casting him with costs and attorney’s fees. He alleges that Delta Fuel sued the wrong defendant in the wrong court and served the wrong agent for service of process. Jones further alleges that he “erroneously” appeared in these proceedings as agent for service of process. He does not find it unreasonable for him to believe that the order regarding the rule for contempt was just another service on Jones Flying Service, erroneously made through him. However, Jones does admit that the account sued upon was actually owed by his business, Mike Jones Flying Service, Inc., which is domiciled in West Carroll Parish, Louisiana, and for which he is the agent for service of process.

The granting of a special motion to strike presents a question of law. Questions of law are reviewed de novo, with the judgment rendered “on the record, without deference to the legal conclusions of the tribunals below.” In re Succession of Carroll, 46,327 (La.App.2d Cir.7/20/11), 72 So.3d 884; Thinkstream, Inc. v. Rubin, 06-1595 (La.App. 1 Cir.9/26/07), 971 So.2d 1092, writ denied, 07-2113 (La.1/7/08), 973 So.2d 730.

|4La. C.C.P. art. 971(A)(1), which defines a special motion to strike, provides:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that plaintiff has established a probability of success on the claim.

Section (F)(1)(a) of this article defines an “[a]ct in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” to include “[a]ny written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.

The moving party must first satisfy the burden of proving the cause of action arises from an act in the exercise of his right of free speech regarding a public issue. If the mover satisfies this initial burden of proof, then the burden shifts to the plaintiff to show a probability of success on his claim. Johnson v. KTBS, Inc., 39,022 (La.App.2d Cir.11/23/04), 889 So.2d 329, writ denied, 2004-3192 (La.3/11/05), [356]*356896 So.2d 68; Thomas v. City of Monroe, 36,526 (La.App.2d Cir.12/18/02), 833 So.2d 1282. When the plaintiff is unable to meet this burden, the special motion to strike should be granted. If the defendant is successful on his motion, the defendant shall be awarded reasonable attorney fees and costs. La. C.C.P. art. 971(B).

Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of | .¡speech and petition for redress of grievances. Johnson, supra; Lee v. Pennington, 02-0381 (La.App. 4th Cir.10/16/02), 830 So.2d 1037. The special motion to strike applies to allegations made in pleadings by attorneys on behalf of their clients to protect their clients’ right to free speech, and it is not limited only to actions involving free speech. In re Succession of Carroll, supra; Thinkstream, supra.

In the case sub judice, Delta Fuel filed a motion to strike Jones’s petition pursuant to La. C.C.P. art. 971 because Jones’s action taken against Delta Fuel arose from its actions undertaken in a judicial proceeding and pleadings filed in court. More specifically, Jones’s action taken against Delta Fuel arose from the motion it filed for contempt, and the damages Jones sustained are a direct result of the trial court’s issuance of the writ of attachment-bench warrant.

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Bluebook (online)
141 So. 3d 352, 2014 WL 2199833, 2014 La. App. LEXIS 1390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-delta-fuel-co-lactapp-2014.