STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-969
LINDA JEANE GARMAN, ET VIR.
VERSUS
JOYCE JEANE SERHAN, ET VIR.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 78,940, DIV. B HONORABLE JOHN C. FORD, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders and Jimmie C. Peters, Judges.
REVERSED AND REMANDED.
Daniel G. Brenner Bolen, Parker, Brenner, Lee & Englesman Ltd. P. O. Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 COUNSEL FOR DEFENDANTS/APPELLEES: Joyce Jeane Serhan Joe Serhan Mitchel M. Evans, II 416 North Pine Street DeRidder, LA 70634 (337) 462-5225 COUNSEL FOR PLAINTIFFS/APPELLANTS: Linda Jeane Garman Allen "Ike" Garmen
Van C. Seneca P. O. Box 3747 Lake Charles, LA 70602-3747 (337) 439-1233 COUNSEL FOR DEFENDANTS/APPELLEES: Joyce Jeane Serhan Joe Serhan PETERS, J.
The plaintiffs in this defamation action, Lynda Jeane Garman and Allen
“Ike” Garman, appeal the trial court’s grant of a motion for partial summary
judgment dismissing their claims against the defendants, Joyce Jeane Serhan and
Joe Serhan. For the following reasons, we reverse the trial court judgment and
remand the matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
On December 13, 2007, Lynda Jeane Garman and Allen “Ike” Garman (the
Garmans), who are husband and wife, filed suit against Joyce Jeane Serhan and Joe
Serhan (the Serhans), who are also husband and wife, seeking to recover damages
they claim to have sustained as a result of defamatory statements made about them
by the Serhans to G. Charest Thibodeaux between October 31, 2006, and March 6,
2007. Lynda Jeane Garman and Joyce Jeane Serhan are sisters. The Garmans
asserted in their original petition that the defamatory statements were both oral and
written.
The Garmans asserted in their original petition that sometime between
October 31, 2006, and March 6, 2007, the Serhans contacted Mr. Thibodeaux 1 and
requested that he conduct an appraisal of their immovable property located in
Vernon Parish, Louisiana, “to determine the volume of cut timber allegedly
removed by Petitioners.” The petition further asserts that the Serhans not only
alleged to Mr. Thibodeaux “that Petitioners had cut their timber without
authorization; but, further alleged that Petitioners had also given permission for a
utility company to bury utility lines on her [sic] Defendants’ property without their
1 The Garmans’ petition identifies Mr. Thibodeaux as a certified residential real estate appraiser professionally associated with the Century 21 organization.
2 knowledge and/or consent.” The Garmans further asserted in their petition that Mr.
Thibodeaux performed a timber cruise of the property on April 24 and 26, 2007, in
the company of the Serhans’ attorney, Clay Williams; and that as a result of his
timber cruise and subsequent investigation, Mr. Thibodeaux concluded that “there
was no evidence that any timber ever existed whatsoever, as alleged by
Defendants.” According to the Garmans’ petition, Mr. Thibodeaux further
concluded “that there was no evidence of any timber removal operations having
been conducted upon Defendants’ property such as stumps, logging equipment
tracks, debris, etcetera.” The petition asserts that Mr. Williams reached the same
conclusion.2
The Garmans further asserted in paragraph XV of their original petition that
the Serhans were dissatisfied with Mr. Thibodeaux’s findings and took further
steps in their assertions against them:
Defendants were notified by both THIBODEAUX and WILLIAMS of their respective findings that there existed no evidence of illegal timber removal. Not satisfied, Defendants then sent a letter to THIBODEAUX on May 3, 2007, alleging that THIBODEAUX had misled them because “Garman had already confessed to us in October, 2006”, and further accused THIBODEAUX of having colluded with the Garmans. Defendants then reported THIBODEAUX to the Office of Louisiana Commissioner for appraisers; the Better Business Bureau; and the Louisiana Real Estate Appraisal Subcomittee; and the Louisiana Office of Forestry, alleging that THIBODEAUX committed fraudulent acts in collusion with Petitioners, all of which necessitated written responses from THIBODEAUX and Petitioners in conjunction with investigations conducted by said agencies.
The Serhans answered the Garmans’ petition on February 19, 2008, and
from that time through February 11, 2013, a number of pleadings were filed which
raise other issues not now before this court. On February 11, 2013, the Serhans
2 Mr. Williams is not the Serhans’ counsel of record in the litigation now before us.
3 filed the motion for partial summary judgment now before us. Without
acknowledging that the words attributed to them were ever spoken or reduced to
writing, the Serhans asserted that the Garmans could not carry their burden of
proving they sustained any damages in their defamation claim.
At the February 26, 20133 hearing on the Serhans’ motion, neither litigant
introduced any evidence. Instead, they simply argued the content of the pleadings
and attachments to the pleadings and memoranda filed in the record. Upon
completion of the argument phase, the trial court took the motion under advisement.
On March 18, 2013, the trial court issued written reasons for judgment wherein it
granted the partial summary judgment based on the lack of any medical evidence
of physical or emotional injury suffered by the Garmans as a result of the
defamatory statements. The trial court signed a judgment to this effect on April 15,
2013, and thereafter the Garmans perfected this appeal.
OPINION
The Garmans claim damages for defamation, “a tort which involves the
invasion of a person’s interest in his or her reputation and good name.” Costello v.
Hardy, 03-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139 (citations omitted). “Four
elements are necessary to establish a defamation cause of action: (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.” Id. (quoting Trentecosta v. Beck, 96-2388, p. 10 (La. 10/21/97), 703 So.2d
552, 559). In this matter, the trial court granted the Serhans’ motion for partial
3 The hearing related to other issues in the litigation as well. However, those issues are not now before us.
4 summary judgment based on its conclusion that there was an absence of factual
support for the “resulting injury” element of the Gramans’ defamation claim.
It is well-settled that “[a]ppellate review of the granting of a motion for
summary judgment is de novo, using the identical criteria that govern the trial
court’s consideration of whether summary judgment is appropriate.” Smitko v.
Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755 (citations
omitted). Prior to August 1, 2012, the evidentiary burden in summary judgment
matters was set forth in La.Code Civ.P. art. 966(B)(emphasis added), as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
However, by 2012 La. Acts No.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-969
LINDA JEANE GARMAN, ET VIR.
VERSUS
JOYCE JEANE SERHAN, ET VIR.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 78,940, DIV. B HONORABLE JOHN C. FORD, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders and Jimmie C. Peters, Judges.
REVERSED AND REMANDED.
Daniel G. Brenner Bolen, Parker, Brenner, Lee & Englesman Ltd. P. O. Box 11590 Alexandria, LA 71315-1590 (318) 445-8236 COUNSEL FOR DEFENDANTS/APPELLEES: Joyce Jeane Serhan Joe Serhan Mitchel M. Evans, II 416 North Pine Street DeRidder, LA 70634 (337) 462-5225 COUNSEL FOR PLAINTIFFS/APPELLANTS: Linda Jeane Garman Allen "Ike" Garmen
Van C. Seneca P. O. Box 3747 Lake Charles, LA 70602-3747 (337) 439-1233 COUNSEL FOR DEFENDANTS/APPELLEES: Joyce Jeane Serhan Joe Serhan PETERS, J.
The plaintiffs in this defamation action, Lynda Jeane Garman and Allen
“Ike” Garman, appeal the trial court’s grant of a motion for partial summary
judgment dismissing their claims against the defendants, Joyce Jeane Serhan and
Joe Serhan. For the following reasons, we reverse the trial court judgment and
remand the matter to the trial court for further proceedings.
DISCUSSION OF THE RECORD
On December 13, 2007, Lynda Jeane Garman and Allen “Ike” Garman (the
Garmans), who are husband and wife, filed suit against Joyce Jeane Serhan and Joe
Serhan (the Serhans), who are also husband and wife, seeking to recover damages
they claim to have sustained as a result of defamatory statements made about them
by the Serhans to G. Charest Thibodeaux between October 31, 2006, and March 6,
2007. Lynda Jeane Garman and Joyce Jeane Serhan are sisters. The Garmans
asserted in their original petition that the defamatory statements were both oral and
written.
The Garmans asserted in their original petition that sometime between
October 31, 2006, and March 6, 2007, the Serhans contacted Mr. Thibodeaux 1 and
requested that he conduct an appraisal of their immovable property located in
Vernon Parish, Louisiana, “to determine the volume of cut timber allegedly
removed by Petitioners.” The petition further asserts that the Serhans not only
alleged to Mr. Thibodeaux “that Petitioners had cut their timber without
authorization; but, further alleged that Petitioners had also given permission for a
utility company to bury utility lines on her [sic] Defendants’ property without their
1 The Garmans’ petition identifies Mr. Thibodeaux as a certified residential real estate appraiser professionally associated with the Century 21 organization.
2 knowledge and/or consent.” The Garmans further asserted in their petition that Mr.
Thibodeaux performed a timber cruise of the property on April 24 and 26, 2007, in
the company of the Serhans’ attorney, Clay Williams; and that as a result of his
timber cruise and subsequent investigation, Mr. Thibodeaux concluded that “there
was no evidence that any timber ever existed whatsoever, as alleged by
Defendants.” According to the Garmans’ petition, Mr. Thibodeaux further
concluded “that there was no evidence of any timber removal operations having
been conducted upon Defendants’ property such as stumps, logging equipment
tracks, debris, etcetera.” The petition asserts that Mr. Williams reached the same
conclusion.2
The Garmans further asserted in paragraph XV of their original petition that
the Serhans were dissatisfied with Mr. Thibodeaux’s findings and took further
steps in their assertions against them:
Defendants were notified by both THIBODEAUX and WILLIAMS of their respective findings that there existed no evidence of illegal timber removal. Not satisfied, Defendants then sent a letter to THIBODEAUX on May 3, 2007, alleging that THIBODEAUX had misled them because “Garman had already confessed to us in October, 2006”, and further accused THIBODEAUX of having colluded with the Garmans. Defendants then reported THIBODEAUX to the Office of Louisiana Commissioner for appraisers; the Better Business Bureau; and the Louisiana Real Estate Appraisal Subcomittee; and the Louisiana Office of Forestry, alleging that THIBODEAUX committed fraudulent acts in collusion with Petitioners, all of which necessitated written responses from THIBODEAUX and Petitioners in conjunction with investigations conducted by said agencies.
The Serhans answered the Garmans’ petition on February 19, 2008, and
from that time through February 11, 2013, a number of pleadings were filed which
raise other issues not now before this court. On February 11, 2013, the Serhans
2 Mr. Williams is not the Serhans’ counsel of record in the litigation now before us.
3 filed the motion for partial summary judgment now before us. Without
acknowledging that the words attributed to them were ever spoken or reduced to
writing, the Serhans asserted that the Garmans could not carry their burden of
proving they sustained any damages in their defamation claim.
At the February 26, 20133 hearing on the Serhans’ motion, neither litigant
introduced any evidence. Instead, they simply argued the content of the pleadings
and attachments to the pleadings and memoranda filed in the record. Upon
completion of the argument phase, the trial court took the motion under advisement.
On March 18, 2013, the trial court issued written reasons for judgment wherein it
granted the partial summary judgment based on the lack of any medical evidence
of physical or emotional injury suffered by the Garmans as a result of the
defamatory statements. The trial court signed a judgment to this effect on April 15,
2013, and thereafter the Garmans perfected this appeal.
OPINION
The Garmans claim damages for defamation, “a tort which involves the
invasion of a person’s interest in his or her reputation and good name.” Costello v.
Hardy, 03-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139 (citations omitted). “Four
elements are necessary to establish a defamation cause of action: (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.” Id. (quoting Trentecosta v. Beck, 96-2388, p. 10 (La. 10/21/97), 703 So.2d
552, 559). In this matter, the trial court granted the Serhans’ motion for partial
3 The hearing related to other issues in the litigation as well. However, those issues are not now before us.
4 summary judgment based on its conclusion that there was an absence of factual
support for the “resulting injury” element of the Gramans’ defamation claim.
It is well-settled that “[a]ppellate review of the granting of a motion for
summary judgment is de novo, using the identical criteria that govern the trial
court’s consideration of whether summary judgment is appropriate.” Smitko v.
Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755 (citations
omitted). Prior to August 1, 2012, the evidentiary burden in summary judgment
matters was set forth in La.Code Civ.P. art. 966(B)(emphasis added), as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
However, by 2012 La. Acts No. 257, § 1, the Louisiana Legislature
significantly changed La.Code Civ.P. art. 966, and one of those changes included
amending and restructuring La.Code Civ.P. art. 966(B).4 The language cited above
was moved to a new subparagraph designated as La.Code Civ.P. art. 966(B)(2), but
without the words “on file.” To emphasize the significance of the deletion of these
two words, the legislature added a subparagraph designated as La.Code Civ.P. art.
966(E)(2)(emphasis added), which provided that “[o]nly evidence admitted for
purposes of the motion for summary judgment shall be considered by the court in
its ruling on the motion.” Still, the 2012 amendment did not change the burden of
proof applicable to a motion for summary judgment.
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is 4 We note that the Louisiana Legislature again substantially amended La.Code Civ.P. art. 966 by 2013 La. Acts No. 391, § 1, and that legislation again affected the burden of proof elements of the Article. However, the 2012 version of La.Code Civ.P. art. 966 was in effect from August 1, 2012 through July 31, 2013, and it governs the February 2013 summary judgment hearing in this case.
5 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 of fact.
La.Code Civ.P. art. 966(C)(2).
The Serhans, as movants, had the burden of proof on their motion, because
they did not bear the burden of proof at trial, they needed only to “point out to the
court that there is an absence of factual support for one or more elements essential
to” the Garmans’ claims. Id. The Serhans failed in their burden of proof. They
offered no evidence in support of their motion, and the trial court was left with no
properly admitted evidence for it to consider. La.Code Civ.P. art. 966(E)(2). 5
“Evidence not properly and officially offered and introduced shall not be
considered, even if it is physically placed in the record.” Adams v. Allstate Ins. Co.,
01-1244, p. 6 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169, 1173 (citations omitted).
We find that the trial court erred in granting the motion for partial summary
judgment.
DISPOSITION
For the foregoing reasons, we reverse the trial court’s judgment granting the
motion for partial summary judgment dismissing the defamation claims of Lynda
Jeane Garman and Allen “Ike” Garman against Joyce Jeane Serhan and Joe Serhan
and remand the matter to the trial court for further proceedings. We assess all
costs of this appeal to Joyce Jeane Serhan and Joe Serhan.
5 As that Article read between August 1, 2012, and July 31, 2013.