Judgment rendered July 17, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,717-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
SHANIKA RENEE GREEN Plaintiff-Appellant
versus
WAL-MART LOUISIANA, LLC, Defendants-Appellees ET AL.
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 634,703
Honorable Ramon Lafitte, Judge
THE PESNELL LAW FIRM, APLC Counsel for Appellants, By: J. Whitney Pesnell Shanika Renee Green, Billy Ray Pesnell Individually and OBO Ahlona Trishelle Green (Minor)
CHADWICK, ODOM & STOKES, LLC Counsel for Appellee, By: Wesley Alexander Hooper Wal-Mart Louisiana, LLC
THE HARVILLE LAW FIRM, LLC Counsel for Appellee, By: Douglas Lee Harville Crime Stoppers of Shreveport, Inc. PHELPS DUNBAR LLP Counsel for Appellee, By: Ashley J. Heilprin Mission Broadcasting, James H. Gilbert Inc., d/b/a KMSS-TV Mary Ellen Roy and/or KMSS FOX 33
Before THOMPSON, MARCOTTE, and ELLENDER, JJ. THOMPSON, J.
Shanika Green, an aggrieved shopper at Wal-Mart in Shreveport, filed
a defamation action against a local television station and a crime stoppers
organization, seeking damages for publication of her image on a freezeframe
of the store’s surveillance footage in connection with a purported theft.
Wal-Mart provided photos from their surveillance footage to the Shreveport
Police Department, who initiated an investigation and prepared a press
release which was published online by the local news station, KMSS, and
Crime Stoppers. Green turned herself in to law enforcement and was
charged with theft in Shreveport City Court, but the charges were ultimately
dropped. Green’s defamation lawsuit in district court against KMSS and
Crime Stoppers alleged they had erroneously relied on the press release from
the Shreveport Police Department and should have investigated further
before publishing that the individuals depicted in the freezeframe were being
sought in connection with the investigation. The trial court granted
exceptions of no cause of action in favor of both defendants and granted a
special motion to strike in favor of KMSS, pursuant to La. C. C. P. art. 971,
assessing attorney fees against Green. For the following reasons, we affirm
the decision of the trial court to grant the exceptions in favor of both KMSS
and Crime Stoppers, and remand for further proceedings to fix the amount of
attorney fees and costs owed to KMSS.
FACTS
On or about January 21, 2021, a loss prevention officer for Wal-Mart,
Louisiana, LLC (“Wal-Mart”), reported to the Shreveport Police Department
(“SPD”) that a theft had occurred at approximately 6:00 PM on January 15, 2021, at Wal-Mart’s store on 1645 East Bert Kouns Industrial Loop in
Shreveport, Louisiana. Wal-Mart prepared a report for SPD based upon the
loss prevention department’s review of its store surveillance videotapes
which included screen shot photographs taken from the surveillance video of
the two unidentified black women and a draft of a press release.
SPD transmitted the photographs and the press release to Crime
Stoppers of Shreveport, Inc. (“Crime Stoppers”), 1 and Mission
Broadcasting, Inc. d/b/a KMSS-TV and/or KMSS Fox 33 (“KMSS”).
KMSS posted a news report on its website and social media page that stated
SPD was seeking the public’s help in identifying two women in a
photograph who “may be connected with a theft” at a local Walmart. The
online news report specifically read:
Shreveport detectives need your help identifying two women who may be connected to a theft at Walmart. The theft happened back on Jan. 15 in the 1600 block of East Bert Kouns. According to the Shreveport Police Department, surveillance video showed two women walk into the store and take multiple items without paying for them. Crime Stoppers is offering a reward in this case. Anyone who can identify these women is urged to call (318) 673-7373 or use the P3tips app.
The same day, a KMSS social media post stated: “Do you recognize
these women? They may be connected to a theft at Walmart and Shreveport
detectives need your help identifying them.” Both the online news report
and the social media post were accompanied by the same photograph taken
from Wal-Mart surveillance footage of the two unidentified women.
Crime Stoppers’ press release similarly stated:
1 Crime Stoppers is a community-supported nonprofit organization. Crime Stoppers provides a phone number for anonymous tips that is publicized on a regular basis by the media, which provides a cost-effective way for law enforcement to gather information on crime.
2 On January 15, 2021, Shreveport Police patrol officers were dispatched to the Walmart in the 1600 block of East Bert Kouns on reports of a theft. Upon arrival, officers learned two black female (sic) entered the business and committed a theft of multiple products. This incident was captured on the store’s surveillance and a photo of the suspects has been extracted from the video in hopes of getting those individual (sic) identified. Crime Stoppers is offering a reward for information leading to the identifies and arrests of the person responsible for this crime. Please contact them at 318-673-7373 or via app at P3tips.
On or about February 9, 2021, Shanika Green (“Green”) was notified
by family members of the Crime Stoppers advertisement, and that she and
her daughter were wanted on a charge of theft. Green contacted an attorney,
who advised that she turn herself in to SPD. Green was charged by affidavit
with the crime of theft under La. R.S. 14:67 and was ordered to appear in
Shreveport City Court on April 19, 2021. Green was never arrested, and no
charges were filed against her minor daughter.
Green appeared in Shreveport City Court on April 19, 2021, entered a
plea of not guilty, and moved for a continuance on the ground that her
daughter was a material witness and was not available because she was out
of state. The motion for continuance was granted and the case was reset for
trial on August 4, 2021. Green appeared in the Shreveport City Court on
August 4, 2021, and the case was again continued at the request of the city
prosecutor because Wal-Mart did not produce a witness to testify. The court
reset the case for trial on September 1, 2021. Green appeared in the
Shreveport City Court on September 1, 2021, and the case was again
continued at the request of the city prosecutor because Wal-Mart did not
produce a witness to testify. Finally, Green appeared in the Shreveport City
Court again on November 5, 2021. Again, Wal-Mart did not produce a
3 representative to testify on its behalf, and the city prosecutor moved to
dismiss the case. The trial court granted the city prosecutor’s motion to
dismiss the case in open court.
In a subsequent petition filed in the First Judicial District Court on
January 12, 2022, Green asserted a defamation claim against Wal-Mart,2
KMSS, and Crime Stoppers, alleging that Wal-Mart’s actions and the
charges filed against her in Shreveport City Court damaged her reputation
and hindered her ability to acquire employment. Green alleged that she
suffered severe mental anguish and pain because of the criminal charges
filed against her. Green asserted that she incurred special damages in
attorney fees and costs in the amount of $700 to defend herself in the
Shreveport City Court prosecution instituted by Wal-Mart.
In response, Crime Stoppers filed a peremptory exception of no cause
of action, asserting that Green’s petition failed to state a cause of action
because she did not allege any malice or fault on the part of Crime Stoppers,
and noted that it reasonably relied on information provided by law
enforcement authorities when it published its online news report.
Days later, pursuant to La. C. C. P. art. 971, KMSS filed a special
motion to strike and peremptory exception of no cause of action. KMSS
asserted that Green’s claims failed to state a cause of action and should be
stricken and dismissed with prejudice. KMSS likewise argued that it relied
on statements made by law enforcement, that the statements in the news
report were true because they accurately reported statements made by law
enforcement, and Green failed to allege that she or her minor daughter were
2 Only the claims asserted against KMSS and Crime Stoppers are before this Court on appeal.
4 named or even depicted in the news report. KMSS also requested that the
court grant an award of attorney fees and costs incurred in bringing the
special motion to strike, in accordance with the provisions of La. C. C. P.
art. 971.
The district court granted Crime Stoppers’ and KMSS’s exceptions of
no cause of action. The trial court ordered that KMSS’s special motion to
strike was deferred. However, the trial court also issued a ruling allowing
Green to file an amended petition. Green timely filed her first supplemental
and amended petition; in response, both parties again asserted peremptory
exceptions of no cause of action, and KMSS renewed its special motion to
strike.
A hearing was held on KMSS’s renewed special motion to strike, and
both KMSS’s and Crime Stoppers’ exceptions of no cause of action. The
trial court subsequently signed a judgment prepared by KMSS, with consent
of all parties, sustaining KMSS’s exception of no cause of action, granting
the special motion to strike, and dismissing all claims set forth in Green’s
petition and amended petition against KMSS. The judgment further ordered
that pursuant to La. C. C. P. art. 971(B), “KMSS shall be awarded
reasonable attorneys’ fees and costs to be paid by [Green] in an amount to be
determined upon application by KMSS.” The trial court signed a separate
judgment prepared by Crime Stoppers, with consent of all parties, sustaining
Crime Stopper’s exception of no cause of action, and dismissing all of
Green’s claims and causes of action with prejudice. Green now appeals.
5 DISCUSSION
Green asserts four assignments of error.
1. The Trial Court erred as a matter of law when it sustained the exception of no cause of action filed by KMSS in this proceeding.
2. The Trial Court erred as a matter of law when it sustained the exception of no cause of action filed by Crime Stoppers in this proceeding.
3. The Trial Court erred as a matter of law when it granted the special motion to strike filed by KMSS in this proceeding.
4. The Trial Court erred as a matter of law when it dismissed all of the Plaintiff’s claims against KMSS and Crime Stoppers in this proceeding with prejudice.
As Assignments of Error 1, 2, and 4 relate to the trial court sustaining
the exceptions of no cause of action by KMSS and Crime Stoppers, resulting
in the dismissal of all claims against them, we will consider these
assignments of error together:
Peremptory Exception of No Cause of Action
The function of the peremptory exception of no cause of action is to
test the legal sufficiency of the petition, which is done by determining
whether the law affords a remedy on the facts alleged in the pleading.
Ramey v. DeCaire, 03-1299 (La. 3/19/04), 869 So. 2d 114. La. C.C.P. art.
931 states that no evidence may be introduced at any time to support or
controvert the objection that the petition fails to state a cause of action.
Therefore, the court reviews the petition and accepts well-pleaded
allegations of fact as true. Ramey, supra. All doubts are resolved in favor of
the sufficiency of the petition to afford litigants their day in court. Jackson
v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So. 3d 876. The issue at
6 the trial of the exception of no cause of action is whether, on the face of the
petition, the plaintiff is legally entitled to the relief sought. Ramey, 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. Grayson v. Gulledge, 55,214 (La. App. 2 Cir.
9/27/23), 371 So. 3d 1133, writ denied, 23-01437 (La. 1/10/24), 376 So.3d
847.
Defamation
The tort of defamation is the invasion of a person’s interest in his or
her reputation and good name. Bradford v. Judson, 44,092 (La. App. 2 Cir.
5/6/09), 12 So. 3d 974, writ denied, 09-1648 (La. 10/16/09), 19 So. 3d 482.
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 East Baton
Rouge, 05-1418 (La. 7/10/06), 935 So. 2d 669. The fault requirement is
generally considered to be malice, actual or implied. Id.
If even one of the elements for a defamation claim is absent, the cause
of action fails. Wyatt v. Elcom of Louisiana, Inc., 34,786 (La. App. 2 Cir.
6/22/01), 792 So. 2d 832.
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
7 to contempt or ridicule. Kennedy, supra; Costello v. Hardy, 03-1146 (La.
1/21/04), 864 So. 2d 129.
In Louisiana, defamatory words have traditionally been separated into
two categories: those that are defamatory per se and those that are
susceptible of a defamatory meaning. Kennedy, supra; Costello, supra.
“Words which expressly or implicitly accuse another of criminal conduct . . .
are considered defamatory per se.” Kennedy, 05-1418 at p. 5, 935 So. 2d at
675.
In determining whether a given communication is defamatory, the
court must determine whether the communication was reasonably capable of
conveying the particular meaning or innuendo ascribed to it by the plaintiff
and whether that meaning is defamatory in character. Johnson v. Purpera,
20-01175 (La. 5/13/21), 320 So. 3d 374. That is answered by determining
whether a listener could have reasonably understood the communication,
taken in context, to have been intended in a defamatory sense. Sassone v.
Elder, 626 So. 2d 345 (La. 1993).
As stated by the Louisiana Supreme Court in Johnson v. Purpera,
supra:
The challenged words must be construed according to the meaning that will be given them by reasonable individuals of ordinary intelligence and sensitivity, and they must be understood in the context in which they were used and in the manner shown by the circumstances under which they were used. Ultimately, the question posed to the court is whether a particular statement is objectively capable of having a defamatory meaning, considering the statement as a whole, the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener.
Citations omitted.
8 A defamatory word must refer to an ascertained or ascertainable
person, and that person must be the plaintiff. McConathy v. Ungar, 33,368
(La. App. 2 Cir. 8/23/00), 765 So. 2d 1214, writ denied, 00-2678 (La.
11/17/00), 774 So. 2d 982 (citing Hyatt v. Lindner, 133 La. 614, 63 So. 241
(1913)). If the word used contains no reflection on a particular individual,
no averment or innuendo can make it defamatory as an innuendo cannot
make the person certain which was uncertain before. Id.
Because the defamation action is personal to the party defamed, this
general rule precludes a person from recovering for a defamatory statement
made about another, even if the statement indirectly inflicts some injury
upon the party seeking recovery. Johnson v. KTBS, Inc., 39,022 (La. App. 2
Cir. 11/23/04), 889 So. 2d 329, writ denied, 04-3192 (La. 3/11/05), 896 So.
2d 68.
There are three types of defamatory statements that are actionable in
Louisiana: (1) false defamatory statements of fact; (2) statements of opinion
which imply false defamatory facts; and (3) truthful statements which carry
a defamatory implication. Johnson v. Purpera, supra. The third category
has been referred to as defamation by implication or innuendo. Id. This
type of defamation happens “when one publishes truthful statements of fact,
and those truthful facts carry a false, defamatory implication about another.”
Fitzgerald v. Tucker, 98-2313, p. 12 (La. 6/29/99), 737 So. 2d 706, 717. It
occurs when a defamatory meaning can be insinuated from an otherwise true
statement; however, it is actionable only if the statements regard a private
individual and private affairs. Johnson v. Purpera, supra.
9 Crime is not a matter of private affairs; rather, it is a matter of public
concern. “The commission of crime, prosecutions resulting from it, and
judicial proceedings arising from the prosecutions, however, are without
question events of legitimate concern to the public and consequently fall
within the responsibility of the press to report the operations of
government.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.
Ct. 1029, 1045, 43 L. Ed. 2d 328 (1975). La. R.S. 15:477.1 provides
protections from disclosure of certain information conveyed by the public to
a crime stopper organization, such as Crime Stoppers, a “private, nonprofit
organization that accepts and expends donations for rewards to persons who
report to the organization information concerning criminal activity and that
forwards the information to the appropriate law enforcement agency.” La.
R.S. 15:477.1(A)(1).
Green argues that the trial court erred as a matter of law when it found
KMSS and Crime Stoppers were entitled to rely upon and publish
defamatory statements transmitted to them by the SPD. Green also argues
that KMSS’s and Crime Stoppers’ reports exceeded the scope of the
qualified privilege for relying upon an official report from law enforcement,
and therefore waived any protection which might have been afforded to
them by that privilege. Green asserts that the online posts by Crime
Stoppers and KMSS went beyond merely stating that SPD was
investigating a theft, but unequivocally stated that Green and her daughter
stole items from Wal-Mart. Green contends that even if the press release can
be considered an official report of SPD, it was not actually prepared by
SPD, but by Wal-Mart. Green contends that SPD’s failure to review or
10 verify the contents of that press release render it unreliable as an official
report.
The record shows that these assertions are simply not supported by the
facts contained in the record. The record clearly establishes that neither
Crime Stoppers nor KMSS stated that Green committed a theft at Wal-Mart.
We find that an analysis of the issue of qualified privilege is unnecessary on
appeal, as Green wrongly attempts to impute the actions of Wal-Mart’s loss
prevention department and its investigation into a theft at its store to the
online news reports published by KMSS and Crime Stoppers. This Court
has found that when the media is furnished arrest information from an
authorized police source, it is under no obligation to verify from other sources
the information so furnished, unless it has knowledge which would make it
aware further research was necessary to insure the veracity of the information.
Lovett v. Caddo Citizen, 584 So. 2d. 1197 (La. App. 2 Cir. 1991). Further,
when a publisher of a news story relies upon a police report, the publisher will
not be held liable for defamation, even if the information in the report is
inaccurate. Thomas v. City of Monroe, 36,526 (La. App. 2 Cir. 12/18/02), 833
So. 2d 1282. Regarding Crime Stoppers specifically, La. R.S. 15:477.1
imagines the important role the organization plays in the area of public
concern. If this Court imposed liability on Crime Stoppers for publishing the
press release SPD provided, law enforcement would lose a vital means of
receiving tips on criminal activity through the anonymity and financial
compensation Crime Stoppers provides. Finally, Green has not been able to
establish falsity or malice. Only false statements can be defamatory, and we
do not find that any false information about Green was contained in the online
11 news reports at issue. As noted above, the statements did not accuse Green or
her daughter of theft and did not even name or identify Green or her daughter
as the individuals in the photo. The language used in the statements by both
KMSS and Crime Stoppers was crafted to specifically provide that the
Shreveport Police Department was investigating a theft at Wal-Mart and
needed assistance from the public in identifying suspects. The online news
reports unambiguously indicated that it was reporting on information relayed
to them by SPD, and never assumed Green’s guilt. Green completely fails to
establish any of the elements for a claim of defamation against KMSS and
Crime Stoppers because she fails to meet her burden of establishing that the
statements published by KMSS and Crime Stoppers were false. Accordingly,
we find these assignments of error are without merit. The trial court did not
err in sustaining the exceptions of no cause of action filed by both KMSS and
Crime Stoppers and was correct in dismissing all of Green’s claims against
them.
Green’s final assignment of error, numbered above as her third
assignment of error, relates to KMSS’s special motion to strike:
3. The Trial Court erred as a matter of law when it granted the special motion to strike filed by KMSS in this proceeding.
Special Motion to Strike
The legislature enacted La. C.C.P. art. 971 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. Quinlan v. Sugar-Gold,
53,348 (La. App. 2 Cir. 3/11/20), 293 So. 3d 722, writ denied, 20-00744 (La.
10/6/20), 302 So. 3d 536.
12 La. C.C.P. art. 971 states in part:
A. (1) 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 the plaintiff has established a probability of success on the claim. (2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ..... B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs. ..... F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise: (1) “Act 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” includes but is not limited to: ..... (c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Section 2 of Act 734 of 1999, which enacted art. 971, stated that the
Louisiana Legislature had found a “disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for redress of grievances.” The lawsuits targeted by art.
971 are referred to as strategic lawsuits against public participation, or
SLAPP. Hatfield v. Herring, 54,048 (La. App. 2 Cir. 8/11/21), 326 So. 3d
944, writ denied, 21-01377 (La. 12/7/21), 328 So. 3d 424.
In Wainwright v. Tyler, 52,083, pp. 16-17 (La. App. 2 Cir. 6/27/18),
253 So. 3d 203, 217, this court discussed the burden of proof on the art. 971
motion:
13 Our appellate courts interpret this statute as requiring a two- part, burden-shifting analysis. In cases where right of petition and free speech activities form the basis of the claims, the mover must first establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue. If the mover makes a prima facie showing that his comments were constitutionally protected and in connection with a public issue, the burden shifts to the plaintiff to demonstrate a probability of success on the claim. In cases where more than one claim is alleged in the petition, the courts examine the probability of success of each claim individually. If the plaintiff can demonstrate a probability of success on any of his claims, then the special motion to strike must fail.
We agree with the trial court and find that KMSS made a prima facie
showing that the content of the news report was an act in furtherance of their
rights to free speech and in connection with a public issue. The commission
of a crime and the police investigation of that crime are matters of legitimate
public concern.
The burden then shifts to Green to demonstrate a probability of
success on her claims. She is unable to satisfy her burden, because her
claims could not withstand the exceptions of no cause of action. We find the
trial court did not err in granting KMSS’s special motion to strike. The trial
court correctly awarded attorney fees to KMSS, pursuant to La. C. C. P. art.
971, but did not specify an amount of the award. Finding KMSS to be
entitled to such attorney fees, we remand this matter to the trial court for
further proceedings as may be necessary to determine the amount of an
attorney fee award to KMSS, with instructions to also consider such attorney
fees incurred in defending this appeal.
14 CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed and
remanded for further proceedings to fix the amount of attorney fees to which
KMSS is entitled, pursuant to La. C. C. P. art. 971. Costs of this appeal are
assigned to Shanika Renee Green.
AFFIRMED; REMANDED WITH INSTRUCTIONS