Alvin Fairburn & Associates, LLC v. Marshall Henry Harris and Cindy Wale

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT

NUMBER 2020 CA 1292

ALVIN FAIRBURN & ASSOCIATES, LLC
VERSUS
MARSHALL HENRY HARRIS AND CINDY WALE

consolidated with

MARY KISTLER
VERSUS
MARSHALL HENRY HARRIS AND CINDY WALE

Decision Rendered:

ON APPEAL FROM THE
21St JUDICIAL DISTRICT COURT, DIVISION E
LIVINGSTON PARISH, LOUISIANA
DOCKET NUMBERS 140, 553 c/ w 140, 754

01 I I

Karl J. Koch Attorney for Plaintiff/ Appellant
Baton Rouge, Louisiana Mary Kistler

Charles A. Schutte, Jr. Attorney for Defendant/ Appellee
Baton Rouge, Louisiana Cindy Wale Franz

A former parish council clerk appeals a summary judgment dismissing her
defamation suit against a parish council member. After review, we deny a pending

motion to strike and affirm the judgment.

At its September 22, 2011 meeting, the Livingston Parish Council ( Council)

approved hiring Alvin Fairburn & Associates, LLC ( AFA) to perform road engineering

services in conjunction with possible improvements to Duff Road in Livingston Parish,

Louisiana. Council members Cindy Wale and Marshall Henry Harris voted in favor of

hiring AFA. It is the exact scope and cost of what the Council actually hired AFA to do

that precipitated this litigation.

On March 6, 2013, Baton Rouge television station WBRZ aired an investigative

report regarding action taken by Mary Kistler, Council Clerk, after the September 22,

2011 Council meeting. The WBRZ report questioned whether Ms. Kistler's

communication with AFA employees during her drafting of the September 22, 2011

Council meeting minutes changed the meaning of those minutes and the scope and cost

of the AFA services ultimately approved by the Council. As part of her investigation

before the report aired, WBRZ reporter Kristy Davis interviewed Council members Wale

and Harris and then included statements made by them in the WBRZ report.

Although the relevant summary judgment evidence does not include the actual

interviews of Council members Wale and Harris, it does contain the WBRZ report that

ultimately aired on March 6, 2013. To provide context herein, we set forth the

following pertinent parts of a transcription of the WBRZ report:

BY WBRZ REPORTER D" IS]: In an attempt to get the ball rolling on
expanding Duff Road, in September of 2011, the [ Council] approved the
evaluation phase of the Duff Road Improvement Projects, but News 2
uncovered a separate set of documents. A month later[,] the [ Council]
approved its September minutes; however, the wording changed and was
signed by then Council Clerk, Mary Kistler. The project now included not
only an evaluation of Duff Road but, also, approval for the preliminary
design and detailed route survey. Six words that cost taxpayers.

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BY COUNCIL MEMBER HARRIS]: That is a problem. We spent
money that was not authorized to do that.

BY WBRZ REPORTER DAVIS]: Just how much? Documents and
checks show Livingston Parish taxpayers pay more than [$ 31, 000. 00.]

BY COUNCIL MEMBER WALE]: That is very scary to think that
something like that could change that would cost [ our], you
know, dollars to the taxpayers.

BY WBRZ REPORTER DAVIS]: According to e- mails obtained by
News 2, former Council Clerk, Mary Kistler[,] made the change. The e-
mails show Kistler communicating with employees of [ AFA], the company
awarded the road work, telling them, " I can modify this resolution within
the context of the discussion if necessary." ... Two weeks later[,] this Mary
Kistler e- mail[ ed] [ AFA] employee Eddy Aydell, with a copy of the changed
resolution. Changes that would later cost Parish taxpayers tens of
thousands of dollars. Three of the Council members serving at the time
tell News 2 ... Kistler never notified the Council about the changes. They,
also ...
tell us the Council did not read the minutes thoroughly when it
accepted them, which, also, meant accepting the changes.

BY COUNCIL MEMBER WALE]: We expect them to be accurate,
of course, you know, we may — we, we will look over them, but
we don' t look at every little detail to make sure it is correct. We
assume that, you know, they've taken correct notes.
Emphasis added.)

After the WBRZ report aired, AFA and Ms. Kistler filed separate suits against Ms.

Wale and Mr. Harris alleging that the two Council members' statements included in the

WBRZ report were defamatory. Specifically, Ms. Kistler alleged that the Council

members " accused [ her] of falsifying Council records and thereby causing the Parish to
spend $ 31, 000 ... which the Parish Council had never authorized." The trial court

consolidated the suits. In due course, the trial court dismissed AFA' s suit after the

parties settled it; denied Ms. Wale and Mr. Harris' s joint motion for summary judgment

in the Kistler suit; and, denied their joint motion to reconsider the motion for summary
judgment, based on new evidence, in the Kistler suit (collectively, the joint motions).

In October 2018, Ms. Wale filed a motion for summary judgment solely on her

own behalf, along with 16 exhibits, some that had been filed with the previous joint

motions and some that were newly -filed. In March 2019, Mr. Harris filed his own

motion for summary judgment. Ms. Kistler filed a consolidated opposition

memorandum to the motions and ' incorporated" by reference the oppositions and

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exhibits she had filed in opposition to Ms. Wale and Mr. Harris's previously -filed joint
motions.
After a hearing in May 2019, the trial court signed a judgment on July 29,

2019, granting Mr. Harris' s motion for summary judgment and dismissing Ms. Kistler's
petition against him with prejudice. The trial court signed a separate judgment on

August 15, 2019, granting Ms. Wale' s motion for summary judgment and dismissing Ms.
Kistler's petition against her with prejudice. In written reasons for granting the

summary judgments, the trial court stated, "[ T] here is no evidence of actual malice by

either [ Mr.] Harris or [ Ms.] Wale."

Ms. Kistler appealed both judgments. In this decision, we decide Ms. Kistler's

appeal from the August 15, 2019 judgment in favor of Ms. Wale. Another appellate

panel is deciding Ms. Kistler' s appeal of the July 29, 2019 judgment in favor of Mr.

Harris in Alvin Fairburn & Associates, LLC v. Marshal! Henry Harris and Cindy Wale c/w

Mary Kistler v. Marshall Henry Harris and Cindy Wale, 20- 1290, 20- 1291 ( La. App. 1 Cir.
J_/ 21), WL

Before reaching the merits, we address Ms. Wale' s motion to strike Ms. Kistler's

reply brief, in which Ms. Wale contends Ms. Kistler's reply brief should be stricken,

because she failed to timely file her original brief, in violation of Uniform Rules — Courts

of Appeal, Rule 2- 12. 6 (" The appellant may file a reply brief, if he has timely filed an

original brief, but it shall be strictly confined to rebuttal of points urged in appellee' s

brief...."} However, after Ms. Kistler failed to timely file her original brief, this Court

notified her that she would have to file a motion for leave to file her reply brief.

Because Ms. Kistler did not file such a motion, her reply brief was not filed. Thus, we

deny, as moot, Ms. Wale's motion to strike Ms. Kistler's reply brief.

In two assignments of error, Ms. Kistler contends the trial court erred in

dismissing her defamation suit against Ms. Wale by summary judgment. First, she

contends that, after denying the joint motions, the trial court could not " change its

mind" and grant Ms. Wale' s solo motion for summary judgment, because Ms. Wale did

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not file any significant, additional summary judgment evidence on the issue of malice or

other fault than what had been previously filed. Second, Ms. Kistler contends the trial

court erred in finding she failed to meet her burden of producing sufficient factual
evidence to create a genuine issue of material fact as to Ms. Wale's malice or other

fault.

RE -URGED MOTION FOR SUMMARY JUDGMENT

Regarding the first assignment of error, we note that the denial of a motion for

summary judgment is an interlocutory judgment that is appealable under when

expressly provided by law. See La. C. C. P. arts. 968, 1841, and 2083C. It is, therefore,

subject to revision at any time prior to final judgment on the matter. See VaSalle v.

Wal --
Mart Stores, Inc., 01- 0462 ( La. 11/ 28/ 01), 801 So. 2d 331, 334. Thus, a trial court

may consider a re -urged motion for summary judgment after prior motions for

summary judgment on the same issue have been denied. Trigg v. Pennington Oil Co.,

Inc., 01- 2822 ( La. App. 1. Cir. 11/ 8/ 02), 835 So. 2d 845, 846- 47. And, such

consideration is allowed when the mover files new evidence on the summary judgment

issue, as well as when the mover does not file new evidence on the issue. See Talbert

v. Restoration Hardware, Inc., 17- 0986 ( La. App. 1 Cir. 5/ 13/ 18), 251 So. 3d 532, 535-

36 ( new evidence filed with re -urged motion); Saizan v. Pointe Coupee Par. Sch. Bd.,

10- 0757 ( La. App. 1 Cir. 10/ 29/ 10), 49 So. 3d 559, 562 (" essentially" the same evidence

filed in support of and in opposition to re -urged motion); Zachary Financial, Inc. v.

Darjean, 08- 1655 ( La. App. 1 Cir. 2/ 13/ 09), 2009 WL 382731, * 3 ( no new evidence filed

with re -urged motion).'

Here, with her solo motion, Ms. Wale filed some of the same evidence filed with

the joint motions and some new evidence not previously filed. Ms. Kistler contends the

newly -filed evidence does not pertain to the issue of Ms. Wale' s malice. Because the

trial court's earlier denial of the joint motions were interlocutory judgments, those

judgments were subject to revision at any time, regardless of whether Ms. Wale filed

Contrast Alexander v. Par. of St. John the Baptist, 12- 173 ( La. App. 5 Cir. 10/ 16/ 12), 102 So. 3d 904,
908 ( finding a trial court may grant a re -urged motion for summary judgment only if the movant has
supplemented the record with meaningful additions that clearly establish there is no longer an issue of
material fact to be determined).
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additional evidence regarding malice with her re -urged motion for summary judgment.

See Zachary Financial, Inc., 2009 WL 382731 at * 3. Accordingly, the trial court did not

err in considering, and then granting, Ms. Wale' s solo motion for summary judgment

after having previously denied the joint motions. Ms. Kistler's first assignment of error

is meritless.

e - e

Appellate courts review the grant or denial of summary judgment de novo under
the same criteria governing the trial court's consideration of

whether summary judgment is appropriate. Jefferson v. Nichols State Univ., 19- 1137

La. App. 1 Cir. 5/ 11/ 20), 311 So. 3d 1083, 1085, writ denied, 20- 00779 ( La. 11/ 4/ 20),

303 So. 3d 623. A court shall grant summary judgment if the pleadings, memorandum,

and admissible supporting documents show there is no genuine issue of material fact

and that the mover is entitled to judgment as a matter of law. See La. C. C. P. art.

966A( 3) and ( 4); Jefferson, 311 So. 3d at 1085. The summary judgment movant

maintains the burden of proof. La. C. C. P. art. 966D( 1). Nevertheless, if the movant

will not bear the burden of proof at trial on the issue before the court on the motion,

his burden is satisfied by pointing out an absence of factual support for one or more

elements essential to the adverse party' s claim, action, or defense. Thereafter, the

adverse parry must produce factual support sufficient to establish he will be able to

satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this

burden, there is no genuine issue of material fact, and, if appropriate, the court shall

render summary judgment against him. La. C. C. P. arts. 966D( 1) and 967B.

Because it is the applicable substantive law that determines materiality, whether

a particular fact in dispute is material can be seen only in light of the substantive law

applicable to the case. Jefferson, 311 So. 3d at 1085. Courts have traditionally found

defamation actions particularly appropriate for resolution by summary judgment, due to

their chilling effect on the exercise of free speech. Johnson v. Purpera, 20- 01175 ( La.

5/ 13/ 21), 320 So. 3d 374, 387.

Defamation is a tort involving the invasion of a person' s interest in his or her

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reputation and good name. Id.; Fitzgerald v. Tucker, 98- 2313 ( La. 6/ 29/ 99), 737 So. 2d

706, 715. A statement containing an element of personal disgrace, dishonesty, or

disrepute undoubtedly satisfies the definition of defamatory. Fitzgerald, 737 So. 2d at

716. To prevail in a defamation action, the plaintiff must prove: ( 1) a false and

defamatory statement concerning another; ( 2) an unprivileged publication to a third

party; ( 3) fault on the part of the publisher, generally referenced as malice, actual or

implied; and ( 4) resulting injury. Johnson, 2021 WL 1921081 at * 7. If even one of the

required elements of the tort is lacking, the claim fails. Id.

The threshold question in any defamation action is whether the challenged words

are capable of a defamatory meaning. Id. at * 10. The court has the unique role of

answering this question — 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. Id. at * 8, * 10. And, notably, not all defamatory statements are

actionable, even though defamatory. Id. at * 13. A statement of opinion relating to

matters of public concern, i.e., relating to any matter of political, social, or other

concern in the community, will receive full constitutional protection unless it contains a

provably false connotation. See Johnson, 2021 WL 1921081 at * 9, * 13; Wainwright v.

Tyler, 52, 083 ( La. App. 2 Or. 6/ 27/ 18), 253 So. 3d 203, 214- 15. A statement of opinion

is actionable only if implies the existence of underlying facts; a reasonable person could

ascertain those implied facts with some degree of certainty; the implied facts are false,

defamatory, made with actual malice; and, concern another. See Fitzgerald, 737 So. 2d

at 716- 17. A finding of actual malice requires proof that the defendant either knew his

statement was false or acted with reckless disregard for the truth. Regan v. Caldwell,

16- 0659 ( La. App. 1 Cir. 4/ 7/ 17), 218 So. 3d 121, 127. It is the court's duty to decide

whether a statement qualifies as a constitutionally -protected statement of opinion. See

Fitzgerald, 737 So. 2d at 716.

In support of her motion for summary judgment, Ms. Wale contends Ms. Kistler

will not be able to establish that Ms. Wale' s statements were false, defamatory, or
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made with actual malice toward Ms. Kistler. In opposition, Ms. Kistler contends Ms.

Wale admitted in an affidavit that her statements in the WBRZ report were about Ms.

Kistler and the September 22, 2011 Council meeting minutes; and, according to Ms.
Kistler, Ms. Wale knew her statements were false. z

In support of her motion for summary judgment, Ms. Wale filed evidence

showing the context within she made the statements that later appeared in the WBRZ

report, including her own deposition, as well as the depositions of Reporter Davis and of

Corey Delahoussaye. In her deposition, Ms. Wale testified that she was on her way

from one meeting to another at the Council office when Reporter Davis unexpectedly
approached her and began " firing questions" at her about the Duff Road project and

the possible change in the September 22, 2011 Council meeting minutes; but, at that

time, Ms. Wale had no idea what type of news story Ms. Davis would produce. Ms.

Wale also did not remember Reporter Davis mentioning Ms. Kistler's name during the
interview, and did not know anything about the interview specifically pertained to Ms.
Kistler. Ms. Wale acknowledged that, after the WBRZ report aired, she signed an

affidavit attesting that her statements to Reporter Davis related to Ms. Kistler; but, she

explained that, at the time she made the statements, she had " no idea that [ they]

related to Ms. Kistler."

In her deposition, Reporter Davis testified that Corey Delahoussaye, a private

citizen, and her own Freedom of Information Act request, were the sources of the

information she used for the WBRZ report. She did not talk to Ms. Wale or to Mr. Harris

before she appeared at the Council office to interview them in 2013; she did not obtain

any documents from them as part of her investigation; neither Council member knew

she was coming to the Council office nor how she would use their statements; she

edited and chose which parts of their statements to use in the WBRZ report; and,

neither Council member reviewed the WBRZ report, or had an opportunity to comment

z In their briefs, the parties disagree as to whether the trial court found Ms. Wale' s statements were
defamatory per se, or subject to a qualified privilege, which is a recognized defense in a defamation suit.
See, generally, Johnson, 320 So. 3d at 390 ( discussing defamatory per se) and Trentecosta v. Beck, 96-
2388 ( La. 10/ 21/ 97), 703 So. 2d 552, 563- 64 ( discussing qualified privilege). Given our analysis herein,
we need not address whether Ms. Wale' s statements were defamatory per se or subject to a qualified
privilege.

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on how their statements were used, before the report aired. According to Reporter

Davis, she chose to use Ms. Wale's statements in her WBRZ report to point out that the

wording the Council originally agreed upon at the September 22, 2011 Council meeting
was changed without the Council' s knowledge and that such was not proper protocol.

Referencing Ms. Wale' s statement, " That is very scary to think that something like that

could change that would cost [ our], you know, dollars to the taxpayers[,]" Reporter

Davis interpreted the statement as Ms. Wale' s " opinion as a council person elected by
the people of Livingston Parish of what not following that protocol could mean."
Reporter Davis admitted that Ms. Wale did not reference Ms. Kistler during her

interview and that the only mention of Ms. Kistler in the WBRZ report were the words

that she, Reporter Davis herself, wrote and broadcast.

In his deposition, Mr. Delahoussaye testified that, after his company's contract
with Livingston Parish was terminated in 2011, he began his own investigation into

events occurring in Livingston Parish. As part of his investigation, Mr. Delahoussaye

obtained certain records kept by Ms. Kistler as the Council Clerk, including the

documents pertaining to the revised September 22, 2011 Council meeting minutes. He

contacted Reporter Davis and gave her the documents. According to Mr. Delahoussaye,

neither Ms. Wale nor Mr. Harris knew about or were involved in his investigation or

knew that he had obtained documents kept by Ms. Kistler. He also stated that, as far

as he knew,
neither Council person knew about or were involved in the developing
WBRZ report.

In opposition, Ms. Kistler argues that Ms. Wale' s statements were made with

actual malice, because they " falsely accused Ms. Kistler of causing [ Livingston] Parish to

spend more money than the Council had authorized, and of changing the meaning of a
resolution approved by the Council." She further argues that Ms. Wale' s July 31, 2014

affidavit establishes the falsity of her statements, because therein she admitted that her

statements related to Ms. Kistler's activities as Council Clerk and to her revision of the

September 22, 2011 Council meeting minutes.

We first note that Ms. Kistler cannot rely on Ms. Wale' s July 31, 2014 affidavit,
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because it was not filed in support of or in opposition to Ms. Wale's solo motion for

summary judgment. In her opposition to Ms. Wales solo motion, Ms. Kistler attempted

to " incorporate" the oppositions and exhibits she had filed to Ms. Wale and Mr. Harris's

previously -filed joint motions and stated that such included Ms. Wale's July 31, 2014
affidavit.3 However, under current La. C. C. P. art. 966D( 2), we may consider only those

documents specifically filed in support of or in opposition to Ms. Wale's solo motion for

summary judgment, even if those documents appear elsewhere in the record. La.

C. C. P. art. 966D( 2) & Comments - 2015, comment ( k); Huggins v, Amtrust Insurance

Company of Kansas, Inc., 20- 0516 ( La. App. 1 Cir. 12/ 30/ 20), 319 So. 3d. 362, 365

recognizing the duplicative nature of requiring a summary judgment movant to file his

own copies of evidence in the record when the very same evidence already appears in

the record, albeit attached to his opponent's cross motion for summary judgment.) And,

nevertheless, Ms. Wale explained in her deposition that she executed the July 31, 2014
affidavit, attesting that her statements to Reporter Davis related to Ms. Kistler, afterthe

WBRZ report aired; she explained that, at the time she made the statements, she had
ono idea that [ they] related to Ms. Kistler." Thus, this evidence, even if it could be

considered, would not create a genuine issue of material fact as to whether Ms. Wale

falsely accused Ms. Kistler of any wrongdoing such as to constitute actual malice toward
her.

After a de novo review of the properly -filed summary judgment evidence, we

conclude that Ms. Wale' s statements are not actionable as a matter of law, but rather

are statements of opinion relating to matters of public concern and were not made with

actual malice.
Objectively considering Ms. Wale's statements in the context they were
made, the evidence shows that, when Reporter Davis interviewed her, Ms. Wale, as a

Council member, was opining that it was ` very scary" that "
something like" an

unauthorized change to the Council' s meeting minutes " could change" the cost of

dollars to the taxpayers. Clearly, a parish council' s acts in approving the expenditure of

3 Although Ms. Wale and Mr. Harris filed Ms. Wale's affidavit in support of their joint motion for summary
judgment, we do not see that Ms. Kistler also filed the affidavit in opposition to either the joint motions or
in opposition to Ms. Wale' s solo motion for summary judgment.
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taxpayer money, the protocol for preparing the official minutes of the council' s meeting,
and how that might affect the expenditure of taxpayer money are matters of political
concern in the community. See Johnson, 2021 WL 1921081, at * 9( finding that

legislative audits of a public agency's administration and operations addressed matters
of public concern); Fitzgerald, 737 So. 2d at 720 ( finding a state board' s

mismanagement, which resulted in the issuance of unnumbered executed substance

abuse counselor certificates, were matters of public concern).

Further, it is also clear that a reasonable person hearing Ms. Wale's statement of
opinion to Reporter Davis, in the context it was made, would not have interpreted that

opinion as a false implication of wrongdoing by Ms. Kistler. See Fitzgerald, 737 So. 2d at
716. Ms. Wale did not know Reporter Davis would interview her, did not know what

type of news story Reporter Davis would produce after the interview, and both Ms.

Wale and Reporter Davis testified that Ms. Kistler was not mentioned during the

interview.
In fact, Reporter Davis admitted that the only mention of Ms. Kistler in the

WBRZ report were words that she herself wrote and broadcast. And, notably, even

Reporter Davis interpreted Ms. Wale' s statements to her as an elected official' s

opinion"
of what not following proper protocol could mean. Accord Fitzgerald, 737

So. 2d at 719 ( noting that defendant's opinion during a television interview included no

mention of the defamation plaintiff by name, nor did it state that anyone, let alone the

defamation plaintiff, was in fact practicing as a substance abuse counselor without a
valid certificate).

As earlier stated, the ultimate question before us is whether Ms. Wale' s

statement was ' 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." Johnson, 2021 WL 1921081

at * 10. The WBRZ report, objectively viewed, reasonably intended to produce a

negative impression of Ms. Kistler in the mind of the average television viewer. That is,

a reasonable viewer would interpret Reporter Davis' s words in the WBRZ report as

containing elements of personal disgrace, dishonesty, or disrepute against Ms. Kistler.

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Fitzgera/d, 737 So. 2d at 716. Further, Reporter Davis' s placement of Ms. Wale' s

statements in the WBRZ report may or may not have been intended to create the
impression that Ms. Wale agreed with Reporter Davis's negative words. Accord

Fitzgerald, 737 So. 2d at 718, n. 9 ( noting that the defendant had no control over the

editing process whereby his 20 -minute interview was substantially edited down to a 2 -
minute newscast).

However, Ms. Wale's statements to Reporter Davis, objectively viewed in the

context in which they were made during the interview, did not contain elements of

personal disgrace, dishonestly, or disrepute as to Ms. Kistler, and, as such, were not

reasonably intended to produce a negative impression of Ms. Kistler in the average

listener' s mind. Rather, the summary judgment evidence shows that Ms. Wale was

unaware of Mr. Delahoussaye' s investigation or Reporter Davis' s investigation before
the interview. Reporter Davis interviewed Ms. Wale without prior notice of the

interview itself or of its subject matter. Ms. Wale provided no documents to Reporter

Davis and was not involved in the production of the WBRZ report. She had no control

over how Reporter Davis used her statements in the WBRZ report and was unaware

that the WBRZ report would cast any of Ms. Kistler's actions in a negative light. Simply,

Ms. Kistler has failed to produce factual support sufficient to establish that she will be

able to prove at trial that Ms. Wale's opinion regarding a matter of public concern was
made with actual malice against her. Because she has failed to meet this burden, we

conclude the trial court appropriately dismissed Ms. Kistler's defamation claims against

Ms. Wale. See La. C. C. P. art. 966D( l) and 967.

RIM •

For the above reasons, we affirm the trial court's August 15, 2019 judgment,

dismissing Mary Kistler's petition against Cindy Wale with prejudice. We deny, as moot,

Cindy Wale' s motion to strike Mary Kistler's reply brief. We assess appeal costs to Mary
Kistler.

1 0,

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