Michael Jason Garsee v. Keda Kleinman Sims, Regan Cobb and Auto Trim Design

• Court: Louisiana Court of Appeal
• Decided: January 11, 2023
• Docket: 54,832-CA
• Status: Published

Opinion

Judgment rendered January 11, 2023. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.

No. 54,832-CA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

MICHAEL JASON GARSEE Plaintiff-Appellant

versus

KEDA KLEINMAN SIMS, Defendants-Appellees REGAN COBB AND AUTO TRIM DESIGN

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2021-1072

Honorable Clarence Wendell Manning, Judge

ROUNTREE LAW OFFICES Counsel for Appellant By: James A. Rountree

McNEW, KING & LANDRY, LLP Counsel for Appellees, By: April M. Hammett Keda Kleinman Sims and Auto Trim Design

Before PITMAN, COX, and ROBINSON, JJ. COX, J.

This suit arises out of the Fourth Judicial District Court, Ouachita

Parish, Louisiana. Michael Garsee filed a petition for damages against Keda

Kleinman-Sims, Regan Cobb,1 and Auto Trim Design for defamation. Ms.

Kleinman-Sims and Auto Trim Design filed exceptions of no cause of

action, which the district court granted. Mr. Garsee now appeals. For the

following reasons, we affirm.

FACTS

On April 13, 2021, Mr. Garsee filed his original petition for damages

alleging defamation. He claimed that on or about January 21, 2021, Ms.

Kleinman-Sims, on behalf of her employer Auto Trim Design, accused him

of stealing a sign that was left on or near his property. He stated that the

allegation was false and defamatory per se, which resulted in his arrest by

the Monroe Police Department. However, those charges were later

dismissed for lack of evidence. Mr. Garsee stated in his petition that

according to a supplemental narrative, a Monroe Police Officer “met with

the owner of Firestone, Regan Cobb, who positively identified [Mr. Garsee]

as the suspect who stole the sign.” Mr. Cobb was also in possession of a

video showing an older white man with gray hair removing the sign. Mr.

Garsee claimed there is no similarity between himself and the man in the

video. He claimed the allegation by Mr. Cobb was false and defamatory per

se. He stated a conviction for theft would have jeopardized his video bingo

and hemp licenses, which could have caused hundreds of thousands of

dollars in damages.

1 On April 28, 2021, Mr. Garsee filed a motion to dismiss Mr. Cobb. Ms. Kleinman-Sims and Auto Trim Design are the only remaining defendants. On May 18, 2021, Ms. Kleinman-Sims and Auto Trim Design

(collectively referred to as “Defendants”) filed peremptory exceptions of no

cause of action, affirmative defenses, and an answer. They stated the

following in their exceptions: Mr. Garsee has failed to state a claim upon

which relief can be granted against them; Mr. Garsee has failed to make any

factual allegations against Ms. Kleinman-Sims in her personal capacity; if a

cause of action exists, it is limited to Auto Trim Design; as admitted in the

petition, a third party positively identified Mr. Garsee to the Monroe Police

Department; and Mr. Garsee has not suffered any damages.

Defendants asserted the affirmative defenses of “failure to mitigate,

estoppel, set off, and contributory negligence.” They also argued that a

strong public policy exists in favor of a conditional or qualified privilege

being extended to reports to law enforcement of alleged wrongful acts to

protect the public. In answering, Defendants denied every allegation made

by Mr. Garsee.

Mr. Garsee opposed the exceptions. He argued that he was only

required to allege that Ms. Kleinman-Sims made a defamatory statement per

se and fault is presumed. He stated that fault may be rebutted with evidence,

but evidence is not admissible at a hearing on an exception of no cause of

action. He also argued evidence is required to demonstrate that qualified

privilege applies.

A hearing on the peremptory exceptions of no cause of action was

held on September 3, 2021. Mr. Garsee and his counsel were not present at

the hearing. The district court granted the exceptions of no cause of action

in favor of Defendants. At the hearing, the district court stated, “Right now

the plaintiff has simply alleged the report was false, defamatory, and 2 malicious, but has identified no statements or has made no statements or no

allegations of fact so as to show that.” Mr. Garsee was permitted 15 days in

which to amend his petition.

Mr. Garsee filed his amended petition on September 17, 2021. Mr.

Garsee named Ms. Kleinman-Sims and Auto Trim Design as defendants. He

restated that Ms. Kleinman-Sims, on behalf of Auto Trim Design, accused

him of theft; the allegation was false and defamatory per se; he was arrested

by the Monroe Police Department; and the false and malicious allegations

caused him damages and injured his good name.

On November 12, 2021, Defendants filed peremptory exceptions of

no cause of action and a motion for sanctions. They reargued their previous

exceptions of no cause of action. They also requested sanctions be imposed

on Mr. Garsee and his counsel for knowingly and intentionally attempting to

mislead the court by failing to state in the amended petition that charges

against Mr. Garsee were dropped, citing La. C.C.P. art. 863. Defendants

asked that Mr. Garsee be ordered to pay their reasonable expenses, including

attorney fees.

Mr. Garsee opposed the exceptions. He argued that an employer is

responsible for the torts of his employees acting in the course and scope of

the employment, as Ms. Kleinman-Sims was. He asserted that he was

accused of theft, which is a crime, and therefore proved defamation per se.

The district court heard the matter on March 23, 2022. The district

court highlighted that Mr. Garsee’s amended petition only deleted some

factual allegations from the original petition and did not add any additional

facts to establish his cause of action. The district court stated that Mr.

Garsee’s amended petition, and therefore the original petition as amended, 3 failed to set forth a cause of action against Ms. Kleinman-Sims and Auto

Trim Design. The district court declined to award sanctions finding no ill

intent to deceive.

On April 12, 2022, the district court signed its judgment granting

Defendants’ peremptory exceptions of no cause of action and dismissing Mr.

Garsee’s claims with prejudice. The district court denied Defendants’

request for sanctions. Mr. Garsee now appeals.

DISCUSSION

Exception of No Cause of Action

Mr. Garsee argues the district court erred in granting Defendants’

exceptions of no cause of action. He asserts that the district court

erroneously accepted written argument as evidence of an affirmative defense

when it should have confined its attention to the petition and determination

of whether the law affords a remedy for defamation.

Defendants argue that the district court did not err in maintaining their

exceptions of no cause of action and dismissing Mr. Garsee’s claims with

prejudice. As to Ms. Kleinman-Sims, they argue that Mr. Garsee failed to

state a cause of action against her personally because she was acting solely

in her capacity as a representative of Auto Trim Design. Therefore, the

cause of action was properly granted as to Ms. Kleinman-Sims. They argue

that it is undisputed that Ms. Kleinman-Sims did not identify Mr. Garsee in

the video. Therefore, it was not Defendants who made the identification, or

“statement,” at issue, even assuming it was false/defamatory.

Defendants argue that a strong public policy exists in favor of a

conditional or qualified privilege being extended to reports to law

enforcement of alleged wrongful acts to protect the public. They also note 4 that Mr. Garsee failed to assert any facts that would in any way establish that

Ms. Kleinman-Sims acted with any intent to mislead the police. Finally,

they argue that Mr. Garsee did not factually allege any damages he actually

suffered.

The peremptory exception of no cause of action is set forth in La.

C.C.P. art. 927(A)(5). It tests the legal sufficiency of the petition by

determining whether the law affords a remedy on the facts alleged in the

petition. Sharp v. Melton, 53,508 (La. App. 2 Cir. 5/20/20), 296 So. 3d

1135; Pesnell v. Sessions, 51,871 (La. App. 2 Cir. 2/28/18), 246 So. 3d 686.

The purpose of the exception of no cause of action is not to determine

whether the plaintiff will prevail at trial but to ascertain if a cause of action

exists. Sharp v. Melton, supra. A “cause of action,” when used in the

context of the peremptory exception of no cause of action, refers to the

operative facts that give rise to the plaintiff’s right to judicially assert the

action against the defendant. Id. The exception is triable on the face of the

petition, and for the purpose of determining the issues raised by the

exception, the well-pleaded facts in the petition must be accepted as true.

Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So. 2d 346; Sharp v. Melton,

supra. No evidence may be introduced at any time to support or controvert

the objection that the petition fails to state a cause of action. La. C.C.P. art.

931.

The burden of demonstrating that the petition states no cause of action

is upon the mover. Wright v. Louisiana Power & Light, 2006-1181 (La.

3/9/07), 951 So. 2d 1058; Sharp v. Melton, supra. All reasonable inferences

are made in favor of the nonmoving party in determining whether the law

affords any remedy to the plaintiff. Villareal v. 6494 Homes, LLC, 48,302 5 (La. App. 2 Cir. 8/7/13), 121 So. 3d 1246. An exception of no cause of

action should be granted only when it appears beyond doubt that the plaintiff

can prove no set of facts in support of any claim which would entitle him to

relief. If the petition states a cause of action on any ground or portion of the

demand, the exception should generally be overruled. Every reasonable

interpretation must be accorded the language used in the petition in favor of

maintaining its sufficiency and affording the plaintiff the opportunity of

presenting evidence at trial. Badeaux v. Southwest Computer Bureau, Inc.,

2005-0612 (La. 3/17/06), 929 So. 2d 1211; Sharp v. Melton, supra.

An appellate court’s review of a trial court’s ruling sustaining an

exception of no cause of action is de novo because the exception raises a

question of law, and the trial court’s decision is based only on the

sufficiency of the petition. Fink v. Bryant, supra. The essential question is

whether, in the light most favorable to plaintiff and with every doubt

resolved in plaintiff’s favor, the petition states any valid cause of action for

relief. Wright v. Louisiana Power & Light, supra.

Defamation is a tort involving the invasion of a person’s interest in his

or her reputation and good name. 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 v.

Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06), 935 So. 2d 669. The

fault requirement is generally referred to in the jurisprudence as malice,

actual or implied. Id.

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 6 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. Id.

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. 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. Id.

In Louisiana, privilege is a defense to a defamation action. Id. An

absolute privilege exists for limited situations such as statements by judges

and legislators in judicial or legislative proceedings. A conditional privilege

may be found in situations in which the person’s interest is regarded as

sufficiently important to justify some latitude for making mistakes so that

publication of the defamatory statement is conditionally privileged.

Impossible to precisely define, a conditional privilege has been described as

containing these elements: good faith, an interest to be upheld, and a

statement limited in scope to this purpose, a proper occasion, and publication

in the proper manner and to proper parties only. Bradford v. Judson, 44,092

(La. App. 2 Cir. 5/6/09), 12 So. 3d 974, writ denied, 2009-1648 (La.

10/16/09), 19 So. 3d 482.

7 In Kennedy v. Sheriff of East Baton Rouge, supra, the Louisiana

Supreme Court was faced with determining whether a privilege extended to

communication of alleged wrongful acts to an official authorized to protect

the public from such acts. The Kennedy Court found that a conditional

privilege existed. A strong public policy exists in favor of a conditional

privilege being extended to reports to law enforcement of alleged wrongful

acts to protect the public. Therefore, there is no civil liability imposed on a

citizen for inaccurately reporting criminal misconduct with no intent to

mislead. The fast food employee in Kennedy reported a matter of public

interest to the proper authorities who had a duty to investigate. Bradford v.

Judson, supra. A conditional privilege may be defeated if the offended

person proves that privilege was abused. Id.

This Court is required to conduct a de novo review to determine if the

district court’s granting of the exceptions of no cause of action was proper.

We must determine if the law affords a remedy for the facts alleged in the

petition. The well-pleaded facts in the petition must be accepted as true.

Mr. Garsee accuses Defendants of defamation; therefore, we must

determine if the law provides a remedy for defamation based on the well-

pleaded facts alleged in the petition. Mr. Garsee claims Defendants

wrongfully accused him of criminal activity, which is defamatory per se. In

actions that are defamatory per se, fault and injury may be presumed.

Although elements three and four may be presumed, Mr. Garsee is still

required to allege facts to prove the first two elements of defamation: (1) a

false and defamatory statement concerning another and (2) an unprivileged

publication to a third party.

8 In alleging the first two elements of defamation, Mr. Garsee made the

following statements in his petition:2

• “On or about January 21, [2021], Keda Kleinman Sims accused plaintiff of stealing a sign that was left on or near plaintiff’s property on Louisville Avenue.”

• “The allegation of theft is false and defamatory per se.”

• “As a result of the false and malicious allegation of theft made by Sims, plaintiff was arrested by Monroe Police Department and prosecuted in Monrie City Court.”

• “Sims made it clear to the arresting officers that she was complaining on behalf of Auto Trim Design, Inc., her employer.”3

We find these statements to be conclusory and not supported by facts

to establish a claim for defamation. As discussed in Kennedy v. Sheriff of E.

Baton Rouge, supra, the reporting of a suspected crime is a conditional

privilege that may be pled as a defense. This appeal stems from an

exception of no cause of action; therefore, Mr. Garsee is not required to

refute the affirmative defense of Defendants’ alleged conditional privilege.

However, Mr. Garsee is required to allege facts to show the second element

of defamation: an unprivileged publication to a third party. Mr. Garsee did

not assert any facts regarding whether the alleged false statements were an

unprivileged publication to a third party.

Ms. Kleinman-Sims is an employee of Auto Trim Design and is not

individually liable. Defamation is an individual tort which, as a general rule,

does not give rise to solidary liability. There are exceptions to the general

rule, such as (1) when the statements are made pursuant to a conspiracy to

2 The substance of these statements was not changed in Mr. Garsee’s amended petition. 3 These are the only allegations in the petition that have to do with the elements of defamation. 9 defame, in which case all persons connected in the conspiracy are solidarily

liable, and (2) when the defamatory statements are made by an employee in

the course and scope of his or her employment, “at least when the

defamation was authorized or ratified by the employer.” Trentecosta v.

Beck, 96-2388 (La. 10/21/97), 703 So. 2d 552.

Mr. Garsee stated in his petition that Ms. Kleinman-Sims made it

clear to the arresting officers that she was complaining on behalf of her

employer. Mr. Garsee never alleged that Ms. Kleinman-Sims was not acting

in the course and scope of her employment with Auto Trim Design. Ms.

Kleinman-Sims made the alleged defamatory statement in the course and

scope of her employment; therefore, liability is attributable to her employer

under vicarious liability principles.4

Mr. Cobb was initially listed as a defendant. Mr. Garsee stated in his

petition that Mr. Cobb positively identified him as the suspect who stole the

sign from video surveillance in his possession. Mr. Cobb was later

dismissed from the suit. Mr. Garsee’s amended petition does not mention

anything about being identified from the video surveillance. Mr. Garsee

agreed at the second hearing on the exceptions that the two petitions should

be read together. Based on these allegations by Mr. Garsee, it was not Ms.

Kleinman-Sims who positively identified him as the suspect on the video.

For the reasons stated above, Mr. Garsee has failed to state a cause of

action for defamation against either Ms. Kleinman-Sims or Auto Trim

Design. The district court properly granted Defendants’ exceptions of no

cause of action and dismissed the suit. This assignment of error lacks merit.

4 See the Louisiana Supreme Court’s comment in footnote 12 in Kennedy v. Sheriff of E. Baton Rouge, supra. 10 Frivolous Appeal

Defendants argue they are entitled to an award of attorney fees and

costs resulting from Mr. Garsee’s frivolous appeal. Defendants requested

attorney fees at the district court in their argument for sanctions but did not

appeal the court’s denial of that request.

The proper procedure for an appellee to request frivolous appeal

damages is to file either an answer to the appeal or a cross appeal. La.

C.C.P. art. 2133; Wied v. TRCM, LLC, 30,106 (La. App. 2 Cir. 7/24/97), 698

So. 2d 685. Since a brief constitutes neither, an appellee cannot recover

frivolous appeal damages if the damages are first requested in brief.

Because they did not separately appeal or answer the appeal, Defendants are

not entitled to frivolous appeal damages.

CONCLUSION

For the reasons stated above, the district court’s judgment granting

Defendants’ exceptions of no cause of action is affirmed. Defendants’

request for frivolous appeal damages is denied. Costs associated with this

appeal are cast on Michael Garsee.

AFFIRMED.