David Lacerte v. State of Louisiana, Daryl Purpera, individually and in his capacity as Louisiana Legislative Auditor, Stephen Street, Jr., individually and in his official capacity as State Inspector General

STATE OF LOUISIANA

COURT OF APPEAL

I FIRST CIRCUIT

2020 CA 1000

DAVID LACERTE

VERSUS

STATE OF LOUISIANA, DARYL PURPERA, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS LOUISIANA LEGISLATIVE AUDITOR,
STEPHEN STREET, JR., INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS STATE INSPECTOR GENERAL

Judgment Rendered: APR 16 2021

On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana

Docket No. 654973

The Honorable William Dupont and the
Honorable Max Tobias, Judges Ad Hoc Presiding

Jill L. Craft Counsel for Plaintiff/Appellant,
W. Brett Conrad, Jr. David LaCerte
Baton Rouge, Louisiana

Jeff Landry Counsel for Defendants/ Appellees,
Louisiana Attorney General State of Louisiana and Daryl Purpera,
David G. Sanders individually and in his official
Baton Rouge, Louisiana capacity as Louisiana Legislative
Auditor
Thomas M. Flanagan
Camille E. Gauthier
Andy Dupre
New Orleans, Louisiana

Jeff Landry Counsel for Defendant/Appellee,
Louisiana Attorney General Stephen Street, Jr., individually and in
Preston J. Castille, Jr. his official capacity as State Inspector
Katia D. Bowman General
Vicki M. Crochet
Ne' Shira Millender
Baton Rouge, Louisiana

BE WHIPPLE, C.J., WELCH, AND CHUTZ, JJ.
s•

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WHIPPLE, C.J.

This matter is before us on appeal by plaintiff, David LaCerte, from a

judgment of the trial court granting a motion for attorney' s fees and costs by

defendants, the State of Louisiana and Daryl Purpera, individually and in his official

capacity as Louisiana Legislative Auditor, pursuant to a judgment granting the

defendants' special motion to strike pursuant to LSA- C. C. P. art. 971. For the

reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

David LaCerte, former Secretary of the Louisiana Department of Veterans

Affairs (" the Department"),' filed a defamation suit against the State of Louisiana,

Daryl Purpera, individually and in his official capacity as Louisiana Legislative

Auditor, and Stephen Street, Jr., individually and in his official capacity as State

Inspector General, arising from a joint investigation conducted by the Legislative

Auditor and the Inspector General that culminated in a report published by the

defendants, via a press release. Mr. LaCerte alleged that the report and press release

wrongfully accused him of criminal conduct, including falsifying public records by

providing an inaccurate military biography on the Department' s website and

engaging in " questionable" hiring, spending, travel and organizational practices

during his tenure with the Department.

The defendants filed a joint special motion to strike pursuant to LSA-C. C. P.

art. 971, seeking to dismiss Mr. LaCerte' s suit against all defendants in their

individual and official capacities.' Mr. LaCerte opposed the motion, filing an

Prior to his appointment as Secretary, Mr. LaCerte served as Deputy Secretary and Interim
Secretary of the Department.

2Louisiana Code of Civil Procedure article 971, entitled, " Special motion to strike"
provides, 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

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expedited motion to strike contending that the defendants' motion was untimely

pursuant to LSA-C. C. P. art. 971( C)( 1) and that the State, as well as Mr. Street and

Mr. Purpera in their official capacities, have no constitutional rights and, thus, are

not " persons" entitled to relief under Article 971. 3 By a judgment dated May 15,

2019, the trial court denied the expedited motion to strike filed by Mr. LaCerte and

granted the defendants' Article 971 special motion to strike. Mr. LaCerte appealed

this judgment and the defendants answered the appeal.

Meanwhile, having prevailed on the Article 971 special motion to strike, on

October 25, 2019, the State and Mr. Purpera, individually and in his official capacity,

filed a motion for attorney' s fees and costs pursuant to LSA-C. C.P. art. 971( B),

which provides that " a prevailing party on a special motion to strike shall be awarded

reasonable attorney fees and costs." Following a hearing,4 on March 12, 2020, the

trial court issued written reasons for judgment granting the motion for attorney' s

fees and costs.' A written judgment was signed on June 22, 2020, awarding

attorney' s fees in the amount of $48, 606.00 with legal interest, as well as court costs

associated with the filing of the motion.6 Mr. LaCerte then filed the instant appeal

contending in five assignments of error that the trial court erred in awarding

attorney' s fees and costs in favor of the defendant. The State and Mr. Purpera,

special motion to strike, unless the court determines that the plaintiff has established
a probability of success on the claim.

Pursuant to LSA-C. C. P. art. ( C)( 1), "[
t]he special motion may be filed within ninety days
of service of the petition, or in the court's discretion, at any later time upon terms the court deems
proper."

The motion for attorney' s fees and costs was heard on March 9, 2020, by the Honorable
William Dupont, who was sitting ad hoc for the Honorable William A. Morvant.

On December 30, 2020, this court issued an order granting a motion by defendants to
supplement the appellate record with the trial court' s written reasons for judgment and instructing
the clerk' s office to supplement the appellate record with same.

The June 22, 2020 judgment was signed by the Honorable Max Tobias, who was sitting
ad hoc for the Honorable William A. Morvant. A separate judgment was rendered awarding
attorney' s fees and costs to Mr. Street, individually and in his official capacity as the Louisiana
Inspector General, which is not before us in this appeal.

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individually and in his official capacity, answered the appeal and seek an award of

attorney' s fees for work performed in connection with this appeal pursuant to LSA-

C. C. P. art. 971( B) " based upon their successful motion to strike."

4n January 4, 2021, however, this court rendered judgment reversing the trial

court' s May 15, 2019 judgment denying Mr. LaCerte' s expedited motion to strike

and granting the defendants' Article 971 special motion to strike. See LaCerte v.

State, 2019- 1401 ( La. App. 1St Cir. 1/ 4/ 21), _ So. 3d _, 2021 WL 21763, writ

denied, 2021- 00193 ( La. 3/ 23/ 21), _ So. 3d _. Therein, this court determined that

the State and official capacity defendants, as juridical persons rather than natural

persons, do not have a constitutional right to freedom of speech, and thus, that these

defendants cannot satisfy their initial burden of proof under Article 971 of making a

primafacie showing that their comments were constitutionally protected. Therefore,

upon submission to a fivejudge panel, the majority ultimately concluded that the

trial court erred in denying Mr. LaCerte' s motion to strike the Article 971 motion

filed by the State and Mr. Street and Mr. Purpera in their official capacities and in

further granting the Article 971 special motion to strike filed by defendants. See

LaCerte v. State, So. 3d at , 2021 WL 21763 at * 10- 1 L' This court further

determined that the trial court erred in granting the Article 971 motion in favor of

Mr. Purpera and Mr. Street in their individual capacities, noting that where there was

no contention by either party that Mr. LaCerte' s cause of action arose from

statements made by Mr. Purpera and Mr. Street in their individual capacities in the

exercise of their right to free speech, as natural persons, in connection with a public

issue, LSA- C. C.P. art. 971 did not apply. LaCerte v. State, __._So. 3d at 2021

WL 21763 at * 10. Accordingly, the defendants' answer to appeal was denied, and

7Two judges concurred in part and dissented in part. See LaCerte v. State, — So. 3d at
2021 WL 21763 at * 11- 16.

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the matter was remanded to the trial court for further proceedings. LaCerte v. State,

So. 3 d at , 2021 WL 21763 at * 10.

The judgment now before us on appeal granted the defendants' motion for

attorney' s fees and costs because the defendants prevailed on their Article 971

special motion to strike. However, considering our reversal of the trial court' s

judgment granting the Article 971 special motion to strike, and the Louisiana

Supreme Court' s denial of the supervisory writ application, we must also reverse the

trial court' s judgment awarding the defendants' attorney' s fees and costs pursuant

to LSA- C. C.P. art. 971( B) in furtherance of the trial court' s earlier judgment. For

the same reasons, we also will deny the defendants' answer to appeal seeking an

attorney' s fees for work performed in connection with this appeal.

CONCLUSION

For the foregoing reasons, the June 22, 2020 judgment of the trial court in

favor of the defendants is hereby reversed. The defendants' answer to appeal is

denied. Costs of this appeal in the amount of $ 1, 508. 50 are assessed against

defendants/ appellees, the State of Louisiana and Daryl G. Purpera, individually and

in his official capacity as Louisiana Legislative Auditor.

JUDGMENT REVERSED; ANSWER TO APPEAL DENIED.

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DAVID LACERTE STATE OF LOUISIANA

j
COURT OF APPEAL

STATE OF LOUISIANA, DARYL FIRST CIRCUIT
PURPERA AS LEGISLATIVE
AUDITOR, STEPHEN STREET AS
STATE INSPECTOR GENERAL NUMBER 2020 CA 1000

CHUTZ, J., concurring.

This court has previously concluded that the State of Louisiana and Daryl

Purpera, as the Louisiana Legislative Auditor, and Stephen Street, as the Louisiana

Inspector General, in their official capacities as juridical persons rather than natural

persons, do not have a constitutional right to freedom of speech. See LaCerte v.

State, 2019- 1401 ( La. App. 1st Cir. 1/ 4/ 21), --- So. 3d ----, ----, 2021 WL 21763, at

10. Therefore, the trial court' s rulings, granting defendants' special motion to strike

under La. C.C.P. art. 971 and denying David LaCerte' s motion to strike the Article

971 motion, were reversed. Id.

Upon the denial of the defendants' application for a supervisory writ by the

Louisiana Supreme Court, see LaCerte v. State, 2021- 00193 ( La. 3/ 23/ 21), --- So. 3d

the statutory basis for the award of attorney fees to defendants was lost.

Accordingly, under an application of the law -of t-he -case doctrine, the majority has

correctly reversed the award of attorney fees to the defendants. See Jourdan v.

Allmerica Financial Benefit Ins. Co., 2020- 0386 (La. App. 1 st Cir. 12/ 30/20), 2020

WL 7768713, at * 2, --- So. 3d ----, ----, writ denied, 2021- 00133 ( La. 3/ 16/ 21) ( an

appellate court generally does not revisit its own rulings of law on a subsequent

appeal in the same case to avoid re -litigation of the same issues, to promote

consistency of result in the same litigation, and to promote efficiency and fairness to

the parties by affording a single opportunity for argument and a decision).

Accordingly, I concur.