Jeff Hughes v. Capital City Press, L.L.C. d/b/a The Advocate

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NUMBER 2021 CA 0201

JEFF HUGHES

VV VERSUS

r C- T-A-L-CITY PRESS, L.L.C. D/B/A THE ADVOCATE
r,,

Judgment Rendered: DEC 0 7 2021

Appealed from the
Eighteenth Judicial District Court
In and for the Parish of Iberville
State of Louisiana
Docket Number 79,978, Div. A

The Honorable J. Kevin Kimball, Judge Presiding

Scott L. Sternberg Counsel for Defendant/Appellant,
Marcia Suzanne Montero Capital City Press, L.L.C. d/ b/ a
Michael S. Finkelstein The Advocate
Graham Williams
New Orleans, LA

John H. Smith Counsel for PlaintifVAppellee,
Loren D. Shanklin Jeff Hughes
Alicia M. Sosa
Baton Rouge, LA

Ford Barry Marionneaux
Elizabeth M. Mayeaux
Plaquemine, LA

Anthony M. "Tony" Clayton
Port Allen, LA

Katie M. Schwartzmann Amicus Curiae Counsel for
New Orleans, LA Reporters Committee for Freedom
of the Press

BEFORE: LANIER, WOLFE, AND WILLIAMS,' JJ.

1 Retired Chief Judge Felicia Toney Williams, serving as judge ad hoc by special
appointment of the Louisiana Supreme Court.

WILLIAMS, J.

In this defamation action, defendant, Capital City Press, L.L.C. d/ b/ a The

Advocate (" The Advocate"), appeals from the judgment of the trial court, denying

its special motion to strike pursuant to La. C. C. P. art. 971, known as Louisiana' s

anti -Strategic Lawsuit Against Public Participation (" anti- SLAPP") statute,2 and

awarding plaintiff, Jeff Hughes (" Justice Hughes"), $ 5, 000. 00 in attorney' s fees, in

addition to court costs.' For the following reasons, we affirm and we award

7, 500. 00 to Justice Hughes for defense of this appeal.

FACTS AND PROCEDURAL HISTORY

On June 25, 2019, The Advocate, a daily Baton Rouge newspaper, published

an article about plaintiff, Justice Hughes, currently an Associate Justice of the

Louisiana Supreme Court, and his actions as the presiding judge over a child

custody case ( hereinafter " the Nicholson custody case") in 1998 and 1999, when

he was a district court judge at the Twenty- first Judicial District Court for

Livingston, St. Helena, and Tangipahoa Parishes. The article, which was

published in the " Opinion" section of The Advocate, was entitled " Jeff Hughes has

made a mockery ofjustice[.]" The June 25, 2019 article stated:

As a justice of the Louisiana Supreme Court, Jeff Hughes is supposed
to embody the highest standards ofjudicial conduct.

He failed that standard miserably two decades ago when he presided
over a controversial custody case while he was, according to several
people, romantically involved with one of its lawyers.

His behavior, brought to light this week by an Advocate investigation
of the long -ago legal battle, should alarm voters who have elected him
to the state' s highest court. Maybe they would have made another

2 Louisiana Code of Civil Procedure article 971 was enacted by 1999 La. Acts, No. 734, §
1. Anti- SLAPP statutes typically apply in cases where a litigant alleges defamation, in an effort
to chill the First Amendment speech of its target. See Stabiler v. Louisiana Business, Inc., 2016-
1182 ( La. App. 1St Cir. 9/ 26/ 17), 232 So. 3d 555, 557 n. 1, writ denied, 2017- 1824 ( La.
12/ 15/ 17), 231 So. 3d 639.

3 The judgment was designated as a final judgment pursuant to La. Code Civ. P. art.
1915( B).

4 The June 25, 2019 article does not contain the author' s name.

2

decision if they had known of Hughes' sordid conduct, which

attracted the attention of the FBI when he was a state judge in
Livingston Parish.

The fact that citizens generally didn' t known about it is an even bigger
scandal. It points to a pervasive lack of transparency in Louisiana' s
judicial system — a problem that hampers accountability and

compromises confidence in how justice is carried out.

Some of the details of the custody dispute are mentioned in an
unrelated court case. That information, along with other documents
The Advocate located, form the basis of what we know. Some
documents were suspiciously missing from the official record. And,
since the records of the state' s Judiciary Commission, which

disciplines judges for bad behavior, aren' t routinely made public, we
don' t know what, if anything, was done to address Hughes' s clearly
unethical behavior.

The facts that have made it into the light of day read like a horror
story. In 1999, while on the state bench in Livingston, Hughes was
romantically involved with lawyer Berkley Durbin, according to
several people familiar with the situation. Even so, he didn' t recuse
himself from a custody case and related legal matters involving a five-
year- old boy named Austin Nicholson. Durbin represented Austin' s
mother, who was fighting for custody even though her boyfriend, who
would become her husband, had been accused of scalding Austin in a
tub of hot water.

Hughes refused to recuse himself and ruled in favor of Austin' s
mother, though child welfare officials strenuously objected. The case
was eventually turned over to another judge, and in 2004, Hughes
wrote a note to the boy' s grandmother in which he appeared to
apologize for his conduct, saying it was " inimical to the pursuit of the
truth and that, because of my actions, justice suffered. For this, I am
deeply remorseful."

If Hughes were truly remorseful, he' d speak publicly about the case,
which prompted an FBI probe that ultimately did not produce any
charges against him.

Sadly, without basic transparency, the public doesn' t know how many
other abuses have occurred in Louisiana' s judiciary and what was
done about them.

State lawmakers had a chance last session to approve a bill making the
records of the judiciary commission public. They balked, no doubt
because many legislators are lawyers who are friends of judges or
aspire to the bench themselves.

Austin Nicholson, now grown, survived his ordeal and now lives out
of state. But Jeff Hughes failed him, and the system did, too. Until
more light is shed on the Louisiana judiciary' s dirty dealings, we can
expect more victims like Nicholson in the future.

3

On June 23, 2020, Justice Hughes filed this defamation action against The

Advocate, alleging The Advocate published a series of articles in 2019 that were

designed to cast him in a negative light. In particular, Justice Hughes alleged the

June 25, 2019 article contained false and defamatory language, as it stated that at

the time he refused to recuse himself from the Nicholson custody case, and ruled in

favor of the mother, he was romantically involved with her lawyer, Berkley

Durbin. Justice Hughes further alleged at the time The Advocate published the

June 25, 2019 article, it had actual knowledge, as evidenced by its previously

published June 23, 2019 article, that Durbin had withdrawn from the Nicholson

custody case over seven months before he granted custody to the mother.

Accordingly, Justice Hughes alleged the June 25, 2019 article was published with

actual malice because The Advocate had knowledge that the defamatory statements

were false, or acted with reckless disregard as to whether or not they were false.

Justice Hughes alleged he met with the editors and reporters for The Advocate and

requested a correction, but The Advocate refused, and continued to publish

additional articles implying Justice Hughes had acted unethically. Justice Hughes

alleged The Advocate' s repeated publication of the unflattering articles in 2019 was

premised on the defamatory statements in the June 25, 2019 excerpt, a fact that he

argued further demonstrates The Advocate acted with actual malice. Justice

Hughes alleged, as a public official and the elected Louisiana Supreme Court

Justice for Livingston, Ascension, Iberville, East and West Baton Rouge, Pointe

Coupee, and East and West Feliciana Parishes, he suffered embarrassment and

damage to his reputation in these parishes, and others, based on The Advocate' s

publication of the defamatory articles.

On July 9, 2020, Justice Hughes filed a " Plaintiff' s Motion Pursuant to

Louisiana Code of Civil Procedure Article 971" seeking a determination from the

trial court that his cause of action against The Advocate is not subject to a special

M

motion to strike under La. C. C. P. art. 971. Justice Hughes asserted he had

established a probability of success on his defamation claim based on the false

statements contained in The Advocate' s June 25, 2019 article indicating he refused

to recuse himself from the Nicholson custody case and ruled in favor of the mother

while romantically involved with her attorney. Justice Hughes attached several

documents to his Article 971 motion, including a copy of the following excerpt

from the June 25, 2019 article:

The facts that have made it into the light of day read like a horror
story. In 1999, while on the state bench in Livingston, Hughes was
romantically involved with lawyer [ redacted], according to several
people familiar with the situation. Even so, he didn' t recuse himself
from a custody case and related legal matters involving a five-year-old
boy named Austin Nicholson. [ Redacted] represented Austin' s
mother, who was fighting for custody even though her boyfriend, who
would become her husband, had been accused of scalding Austin in a
tub of hot water.

Hughes refused to recuse himself and ruled in favor of Austin' s
mother, though child welfare officials strenuously[...]

Emphasis and redactions in original).

Hughes additionally attached a copy of an excerpt of the June 23, 2019 article

published by The Advocate, which stated:

By the time of the custody hearing, overseen by Hughes, [ redacted]
was no longer the lawyer of record. She' d officially left the case in
August 1998, court documents show.

Emphasis and redaction in original).

Justice Hughes also attached the following documents to his Article 971

motion: ( 1) a certified copy of a motion to substitute counsel of record and

attached signed order, dated August 27, 1998, permitting Durbin to withdraw as

counsel of record for Kristin M. Fuselier ( formerly, Kristen Nicholson),5 Austin

5 Kristin M. Fuselier is sometimes referred to in the record by her previous married name,
Kristin Nicholson, and her first name is sometimes spelled Kristen. For clarity, we will refer to
her as Kristin Fuselier throughout this opinion.

5

Nicholson' s mother, in the Nicholson custody case; ( 2) a certified copy of the court

minutes corresponding to the March 24, 1999 custody trial in the Nicholson

custody case, which reflect that Kristin Fuselier was represented by attorney W.

Robert Gill at the time of the custody trial; ( 3) a copy of an excerpt from The

Gambit, a New Orleans newspaper, containing a " CORRECTION" noting the

author previously reported that Justice Hughes was romantically involved with the

lawyer for a litigant in a child custody case appearing before him in March 1999,

but the author had been provided with court documents revealing the attorney in

question did not represent the litigant at the time of the custody trial and had

withdrawn from the case in August 1998; ( 4) an affidavit by Jason Harris,

Livingston Parish Clerk of Court, who identified and verified the motion and order

permitting Durbin to withdraw from the Nicholson custody case on August 27,

1998, and the March 24, 1999 minute entry from the Nicholson custody case; ( 5)

an affidavit by Edward R. Erwin, who attested he is a lifelong resident of lberville

Parish, he has subscribed to The Advocate for 42 years, and he receives The

Advocate daily at his home; and ( 6) an affidavit by Justice Hughes, wherein he

identified the excerpt of the June 25, 2019 article and the excerpt of the June 23,

2019 article published by The Advocate, which he attested were delivered to his

home in Livingston Parish, and the excerpt of The Gambit containing the

correction, which he stated was delivered to his New Orleans office.

On August 5, 2020, The Advocate filed an answer to Justice Hughes'

defamation suit, raising several affirmative defenses, specifically asserting that

Justice Hughes cannot prove the complained -of speech is false, or that he suffered

damages as a result of The Advocate' s publication of the articles at issue. The

Advocate additionally noted its intention to file a special motion to strike pursuant

to Article 971.

On August 28, 2020, The Advocate filed a " Motion to Strike Plaintiffs

Anticipatory La. C. C. P. art. 971 Motion to Strike," arguing Justice Hughes' special

motion to strike should be stricken from the record because Article 971 allows the

filing of a motion to strike as an affirmative defense, to defeat meritless defamation

claims, and not as a means to prevent a defendant from filing a motion to strike

under Article 971.

On October 14, 2020, The Advocate filed a special motion to strike pursuant

to Article 971. The Advocate asserted that Justice Hughes cannot demonstrate he

has a probability of success on his defamation action because the June 25, 2019

article, including the June 25, 2019 excerpt cited in his Article 971 motion, is true

or substantially true. Specifically, The Advocate conceded that Durbin withdrew

from the Nicholson custody case in August 1998, but asserted that she continued to

represent Kristin Fuselier in a child in need of care action, and represented

Kristin' s boyfriend ( later, husband) Marc Fuselier' in criminal proceedings

stemming from allegations he scalded Austin Nicholson in hot bath water, at the

time when Justice Hughes granted Kristin Fuselier custody of Austin. The

Advocate further argued Justice Hughes cannot prove it acted with actual malice

because, as a public figure, he must demonstrate The Advocate knowingly

published a false statement, or acted with reckless disregard for whether a

statement was false, and the July 25, 2019 excerpt did not contain a false

statement. Alternatively, The Advocate argued Justice Hughes cannot prove he

suffered damages because he is barred from running for reelection for Louisiana

Supreme Court Justice due to his age, and therefore any claim he lost support from

voters due to The Advocate' s publication of the 2019 articles is without merit. The

Advocate also argued Justice Hughes has not alleged a loss of income, and does not

6 Marc Fuselier' s first name is sometimes spelled Mark in the record. For clarity, we will
refer to him as Marc Fuselier throughout this opinion.

7

take issue with any other factual statements contained in The Advocate' s articles.

The Advocate sought reasonable attorney' s fees and costs, and requested dismissal

of Justice Hughes' petition.

The Advocate attached to its special motion to strike a copy of the June 25,

2019 article and copies of the articles it published about Justice Hughes on June

23, 2019, July 28, 2019, and August 23, 2019, all of which were identified in an

affidavit by Andrea Gallo, an employee of The Advocate and one of the authors of

the articles. The June 23, 2019 article, written by Gallo, John Simerman, and Katie

Moore, noted the reporters discovered Justice Hughes had been the subject of a

five-year FBI investigation regarding his conduct as the presiding judge in the

Nicholson custody case when they found a motion to recuse Justice Hughes, then

Judge Hughes, when he was an appellate judge at the First Circuit Court of Appeal.

The motion to recuse, filed by L.J. Hymel, a former United States Attorney, sought

to have Justice Hughes recused from a case because Hymel, who was involved

with the investigation into Justice Hughes, represented one of the litigants in the

case on appeal. A copy of the motion to recuse filed by Hymel, which was

mentioned in the July 23, 2019 article, was identified in, and attached to, Gallo' s

affidavit.

The Advocate also attached to its special motion to strike pleadings from the

child in need of care proceeding involving Austin Nicholson, which were

identified in Gallo' s affidavit, and which she stated were provided to her by the

Nicholson family. The child in need of care pleadings included a motion to

continue, and a motion to dismiss and withdraw, both of which were filed by

Durbin on behalf of Marc Fuselier. Notably, the motion to dismiss and withdraw

noted that on May 7, 1999, Kristin Fuselier' s counsel of record, Robert Gill, was

absent for a continued custody hearing and Gill' s partner, who was present at the

hearing, was unfamiliar with the case, so Durbin enrolled as co -counsel for Kristin

r-

Fuselier for the limited purpose of the hearing, and therefore wished to withdraw.

Lastly, Gallo identified an attached motion filed in July 1999 by Durbin on behalf

of Marc Fuselier in his criminal case. In her affidavit, Gallo attested to her belief

that the allegation Justice Hughes ruled on the custody of Austin Nicholson while

dating Durbin, who continued to represent Kristin Fuselier and Marc Fuselier in

related proceedings, is true based on public records and interviews she and her

reporting partner, Simerman, conducted.

On October 21, 2020, Justice Hughes filed an opposition to The Advocate' s

special motion to strike, incorporating by reference his own Article 971 motion,

including exhibits and supporting memorandum, and his petition. In his

opposition, Justice Hughes conceded that this is a matter of public interest

involving a public figure. Justice Hughes argued The Advocate failed to report on

the accurate factual circumstances, namely that Durbin represented Marc Fuselier

in a separate criminal case, before a different judge, and that over a month after

Justice Hughes ruled in the Nicholson custody case, Durbin temporarily enrolled as

co -counsel for Kristin Fuselier in a juvenile case presided over by a different

judge, in a different division. Justice Hughes attached to his opposition an

affidavit by Jason Harris, Livingston Parish Clerk of Court, who attested to the fact

the child in need of care petition involving Austin Nicholson was filed on May 3,

1999, and on May 7, 1999, Durbin enrolled as attorney of record for Austin' s

mother. Harris further stated the child in need of care proceedings were presided

over by Judge Ernest Drake.

On November 2, 2020, The Advocate filed a reply memorandum in support

of its special motion to strike, arguing Justice Hughes cannot demonstrate a

1

probability of success on the merits of his defamation claim because The Advocate

never published a false statement or acted with actual malice.'

On November 5, 2020, a hearing was held on The Advocate' s special motion

to strike pursuant to Article 971. 8 At the outset, the parties stipulated that Justice

Hughes is a public figure for purposes of Article 971( A)( 1). Following argument,

the trial court denied The Advocate' s special motion to strike, finding Justice

Hughes had demonstrated a probability of success by showing the June 25, 2019

article contained defamatory statements:

Well, I' ve read all the memos, replies, and read as a whole this Court
believes that the average reader would definitely take away from the
article that Justice Hughes was romantically involved with the
mother' s attorney on a custody trial that was before him and refused
to recuse himself while she was the attorney of record in a case.
That' s what I think anybody that read the article would take from [ it].

Additionally, the trial court found another section of the June 25, 2019 article

inaccurately conveyed the notion that at the time Justice Hughes granted custody to

Kristin Fuselier, he was romantically involved with her attorney. In particular, the

trial court found troubling the second paragraph of the June 25, 2019 article, which

read:

Justice Hughes] failed that standard miserably two decades ago when
he presided over a controversial custody case while he was, according
to several people, romantically involved with one of its lawyers.

The trial court also determined, based on the June 23, 2019 article, Justice Hughes

had supplied sufficient evidence to show The Advocate acted with actual malice

because it knew when it published the June 25, 2019 article that Durbin did not

7 On October 28, 2020, The Advocate also filed an opposition to Justice Hughes' Article
971 motion, incorporating by reference the arguments made it in its previously filed " Motion to
Strike Plaintiffs Anticipatory La. C. C. P. art. 971 Motion to Strike" and its special motion to
strike.

8 Justice Hughes' Article 971 motion was continued without date by agreement of the
parties. At the hearing, counsel for Justice Hughes introduced the entire record, including all
memoranda and affidavits filed therein. Likewise, counsel for The Advocate introduced into
evidence its memoranda and exhibits, and sought admission of the motion to recuse filed by
Rodney Nicholson in the Nicholson custody case. The trial court admitted all exhibits into
evidence.

10

represent Kristin Fuselier at the time Justice Hughes granted her custody of Austin.

The trial court then addressed the issue of damages, noting Justice Hughes had not

set forth specific proof of damages, but found it was not required under Article 971

to make an actual determination of damages ... it' s just probability of success."

Furthermore, the trial court determined it was " reasonable to think that based on

the article that his reputation has suffered therefor." Thereafter, the trial court

awarded Justice Hughes $ 5, 000. 00 in attorney' s fees, plus court costs.

On November 23, 2020, the trial court signed a written judgment denying

The Advocate' s special motion to strike, and awarding Justice Hughes $ 5, 000. 00 in

attorney' s fees pursuant to Article 971, in addition to court costs. It is from this

judgment that The Advocate suspensively appeals. Justice Hughes answered the

appeal, seeking to increase the attorney' s fees awarded by the trial court, and also

asking this court to award additional attorney' s fees incurred in connection with

this appeal. The Reporters Committee for Freedom of the Press has submitted an

amicus curiae brief in support of The Advocate.

ASSIGNMENTS OF ERROR

The Advocate raises the following assignments of error: ( 1) the trial court

erred by denying its special motion to strike because Justice Hughes failed to

demonstrate a likelihood of success on the merits of his defamation action; ( 2) the

trial court erred by finding Justice Hughes was not required to produce proof of

damages; ( 3) the trial court erred by finding The Advocate acted with actual

malice; and ( 4) the trial court erred by failing to dismiss Justice Hughes'

defamation action with prejudice and by failing to award The Advocate attorney' s

fees and costs under Article 971.

DISCUSSION

Louisiana Code of Civil Procedure article 971 provides, in pertinent part:

11

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.

3) If the
court determines that the plaintiff has established a
probability of success on the claim, that determination shall be
admissible in evidence at any later stage of the proceeding.

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.

Louisiana Code of Civil Procedure article 971 was enacted by 1999 La.

Acts, No. 734, § 1. Section 2 of the Act provides:

The legislature finds and declares that there has been 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 legislature finds and declares that it is in the public
interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through
abuse of the judicial process. To this end, it is the intention of the
legislature that the Article enacted pursuant to this Act shall be
construed broadly.

Hence, Article 971 was enacted by the legislature 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

12

petition for redress of grievances. Thinkstream, Inc. v. Rubin, 2006- 1595 ( La.

App. 1st Cir. 9/ 26/ 07), 971 So. 2d 1092, 1100, writ denied, 2007- 2113 ( La.

1/ 7/ 08), 973 So. 2d 730.

In Thinkstream, this court explained that Article 971( A)( 1) creates a burden -

shifting scheme where the mover must initially establish that the cause of action

against them arises " 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[.]" Id. at 1100 ( citing La. C. C. P. art. 971( A)( 1)). If

the mover can satisfy this initial burden of proof, then the burden shifts to the

plaintiff to demonstrate a probability of success on the claim. Id.

A ruling on a special motion to strike is reviewed de novo on appeal to

determine whether the trial court was legally correct. The appellate court gives no

special weight to the trial court findings, but exercises its constitutional duty to

review questions of law and renders a judgment on the record. Breen v. Holmes,

2016- 1591 ( La. App. 1st Cir. 12/ 7/ 17), 236 So. 3d 632, 636, writ denied, 2018-

0049 ( La. 3/ 2/ 18), 269 So. 3d 708.

As discussed, the parties stipulated that Justice Hughes is a public figure for

purposes of Article 971( A)( 1) at the November 5, 2020 hearing on The Advocate' s

special motion to strike. Accordingly, we find The Advocate met its initial burden

of proving that Justice Hughes' defamation claim against The Advocate arises from

its exercise of free speech under the United States or Louisiana Constitution in

connection with a public issue. Thus, the burden shifted to Justice Hughes to

demonstrate a probability of success on his defamation action. See Thinkstream,

971 So. 2d at 1100.

Rooted in Louisiana Civil Code article 2315, defamation is a tort involving

the invasion of a person' s interest in his or her reputation and good name. Johnson

v. Purpera, 2020- 01175 ( La. 5/ 13/ 21), 320 So. 3d 374, 386. The question of

13

whether a communication is objectively capable of a defamatory meaning is a legal

question for the court. Sassone v. Elder, 626 So. 2d 345, 352 ( La. 1993). To

answer this threshold question, a court must consider the context of the

communication and whether the average listener could have reasonably understood

the communication to convey the defamatory meaning. Id.; Kosmitis v. Bailey,

28, 585 ( La. App. 2d Cir. 12/ 20/ 96), 685 So. 2d 1177, 1180.

To prevail on a defamation claim, the plaintiff must prove by a

preponderance of the evidence ( 1) defamatory words, ( 2) publication, ( 3) falsity,

4) malice, and ( 5) resulting injury. Breen, 236 So. 3d at 638. Thus, in order to

prevail on a defamation claim, a plaintiff must prove " that the defendant, with

actual malice or other fault, published a false statement with defamatory words

which caused plaintiff damages." Sassone, 626 So. 2d at 350. If even one of the

required elements of the tort is lacking, the claim fails. Costello v. Hardy, 2003-

1146 ( La. 1/ 21/ 04), 864 So. 2d 129, 140. Defamatory words are those that harm

the reputation of another so as to lower him in the estimation of the community or

to deter others from associating with him. Thinkstream, 971 So. 2d at 1101.

Nonetheless, not all defamatory statements are actionable. Rather, many

statements are protected by the First Amendment' s guarantee of freedom of

speech. Fitzgerald v. Tucker, 98- 2313 ( La. 6/ 29/ 99), 737 So. 2d 706, 716. For

instance, " a statement of opinion relating to matters of public concern which does

not contain a provably false factual connotation will receive full constitutional

protection." Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695,

2706, 111 L. Ed. 2d 1 ( 1990); Romero v. Thomson Newspapers ( Wisconsin), Inc.,

94- 1105 ( La. 1/ 17/ 95), 648 So. 2d 866, 870. Additionally, "[ s] peech on matters of

public concern enjoys enhanced constitutional protection." Romero, 648 So. 2d at

14

Falsity and Actual Malice

The Advocate argues in its third assignment of error that Justice Hughes

failed to establish a probability of success on his defamation action because the

June 25, 2019 article is true, or substantially true, and therefore, there was no

evidence The Advocate acted with actual malice by publishing the article. We will

address these issues first.

In order for a public official to recover damages for defamation, the public

official " must establish by clear and convincing evidence that the defamatory

statement was made with actual malice, that is, ` with knowledge it was false or

with reckless disregard of whether it was false or not."' Davis v. Borskey, 94-

2399 ( La. 9/ 5/ 95), 660 So. 2d 17, 23 ( quoting New York Times Co. v. Sullivan, 376

U.S. 254, 280, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686 ( 1964)). To establish a

reckless disregard for the truth, the plaintiff must show that the false publication

was made with a high degree of awareness of probable falsity, or that the defendant

entertained serious doubt as to the truth of his publication. Starr v. Boudreaux,

2007- 0652 ( La. App. 1st Cir. 12/ 21/ 07), 978 So. 2d 384, 390 ( citing Tarpley v.

Colfax Chron., 94- 2919 ( La. 2/ 17/ 95), 650 So. 2d 738, 740 (per curiam)). Further,

conduct which would constitute reckless disregard is typically found where a story

is fabricated by the defendant, is the product of his imagination, or is so inherently

improbable that only a reckless man would have put it in circulation. Id. (citing

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

I

As an initial matter, we find, considering the context of the statements at

issue in the June 25, 2019 article, the average reader could have reasonably

understood the statements to convey the defamatory meaning Justice Hughes

alleges they impart to a reader. As noted by the trial court at the hearing on The

15

Advocate' s special motion to strike, the June 25, 2019 article states, in pertinent

part:

Justice Hughes] failed that standard miserably two decades ago when
he presided over a controversial custody case while he was, according
to several people, romantically involved with one of its lawyers.

We find the factual connotation this statement conveys to the average reader of The

Advocate is that Justice Hughes decided the merits of a custody dispute while

dating a lawyer on the case. This factual connotation is defamatory and provably

false. As is evident from the order permitting Durbin to withdraw as counsel for

Kristin Fuselier in the Nicholson custody case, by March 24 1999, when Justice

Hughes granted custody to Kristin Fuselier, Durbin had been out of the case for

seven months. Additionally, instead of clarifying that at the time Justice Hughes

ruled in favor of Kristen Fuselier, Durbin was no longer representing her, the

article repeats the same false factual connotation in the excerpt cited by Justice

Hughes:

The facts that have made it into the light of day read like a horror
story. In 1999, while on the state bench in Livingston, Hughes was
romantically involved with lawyer [ redacted], according to several
people familiar with the situation. Even so, he didn' t recuse himself
from a custody case and related legal matters involving a five-year-old
boy named Austin Nicholson. [ Redacted] represented Austin' s

mother, who was fighting for custody even though her boyfriend, who
would become her husband, had been accused of scalding Austin in a
tub of hot water.

Hughes refused to recuse himself and ruled in favor of Austin' s
mother, though child welfare officials strenuously[...]

Emphasis and redactions in original).

Thus, we find Justice Hughes met his burden of demonstrating a likelihood of

success as to falsity of the complained -of defamatory speech.

We likewise find Justice Hughes demonstrated a likelihood of success as to

actual malice on the part of The Advocate. On June 23, 2019, The Advocate

16

published an article specifically noting, "[ b] y the time of the custody hearing,

overseen by Hughes, Durbin was no longer the lawyer of record. She' d officially

left the case in August 1998, court documents show." Despite this fact, two days

later, The Advocate published the June 25, 2019 article containing the false

statements referred to above. The Advocate had actual knowledge that its June 25,

2019 article contained false statements of fact, based on its publication of the June

23, 2019 article.9 In fact, the June 25, 2019 article notes that the facts cited therein

were " brought to light this week by an Advocate investigation." The Advocate

clearly possessed the documentation to present an accurate article about its

investigation into Justice Hughes, but chose to publish the false defamatory

statements. Accordingly, we find Justice Hughes has demonstrated a probability of

success as to actual malice.

Resulting Injury

In its second assignment of error, The Advocate contends the trial court erred

in finding Justice Hughes had demonstrated a probability of success on his

defamation action because he did not set forth proof that he suffered damages. The

Advocate contends that Justice Hughes did not allege any damages in his petition

and presented no evidence of damages. The Advocate points out that damages are

not presumed in this case because it deals with a matter of public interest. This

9 The Advocate argues this case is factually analogous to New York Times, supra. In New York
Times, a police commissioner filed suit against the newspaper and others alleging an
advertisement in the newspaper contained defamatory and false statements that referred to him.
Id. at 256; 258- 59. A jury found the statements were libelous per se and awarded the police
commissioner damages. Id. at 262. The United States Supreme Court reversed, holding that a
public official must demonstrate actual malice in order to prove defamation, and the police
commission failed to present such proof. Id. at 285- 86. In particular, the Supreme Court found
unconvincing the argument that the newspaper had actual knowledge of the inaccuracies in the
advertisement because it should have checked the accuracy of the advertisement against its own
news files. The Supreme Court explained that the fact the newspaper had stories in its files did
not establish that the newspaper " knew" the advertisement was false because knowledge of any
falsity would have had to been brought to the attention of the people in charge of production of
the advertisement. Id. at 287. The case sub judice does not involve an advertisement created by a
third party; The Advocate created and published both the June 23, 2019 article and the June 25,
2019 article. Accordingly, we find New York Times to be distinguishable.

17

issue is also addressed in the amicus curiae brief submitted by the Reporters

Committee for Freedom of the Press.

As discussed, pursuant to Article 971, Justice Hughes is required to

demonstrate a probability of success on his defamation claim, and to maintain an

action for defamation, a plaintiff has the burden of proving: ( 1) defamatory words;

2) publication; ( 3) falsity; ( 4) malice; and ( 5) resulting injury. Breen, 236 So. 3d

at 638.

The Advocate cites Lamz v. Wells, 2005- 1497 ( La. App. 1st Cir. 6/ 9/ 06), 938

So. 2d 792, in support of its position that Justice Hughes was required to introduce

evidence proving he suffered an injury based on the defamatory statements. In

Lamz, the plaintiff sued the defendant for defamation based on statements made by

the defendant when both parties were running for judicial office. Id. at 794. The

race was controversial and contentious, and resulted in the election of the plaintiff

by a small margin. Id. at 798. In response to the plaintiff' s suit, the defendant

filed a special motion to strike pursuant to Article 971. Id. at 794. The trial court

granted the motion and dismissed the plaintiff's claims against the defendant. Id.

at 795. On appeal, this court agreed that the plaintiff had failed to establish a

probability of success on his defamation claims, finding nothing in the record

showed that the publications were false, that the defendant acted with actual

malice, or that the plaintiff "sustained any injury as a result of the publications at

issue." Mat 798. Accordingly, this court affirmed the trial court' s judgment

granting the defendant' s special motion to strike and dismissing the plaintiff's

action with prejudice. Id. at 798- 99.

In Saucier v. Washington, 2017- 556 ( La. App. 3d Cir. 9/ 20/ 17), 229 So. 3d

19, another case cited by The Advocate, two neighbors were embroiled in

contentious litigation and one neighbor, Saucier, sued the other, Washington,

alleging he had made defamatory statements about Saucier in comments to an

am

online article, on the radio, and in campaign literature relating to a district attorney

race. Id. at 25- 26. Washington filed a special motion to strike pursuant to Article

971, alleging the statements were constitutionally protected. Id. at 26- 27. The trial

court denied Washington' s special motion to strike, and he sought supervisory

review of the trial court' s judgment. Id. at 27. Initially, the Third Circuit Court of

Appeal found Washington had met his burden of proving the allegedly defamatory

statements involved matters of public interest and therefore the burden shifted to

Saucier to prove a likelihood of success on his claims. Id. at 27- 28. The court then

explained that Saucier could not recover presumed or punitive damages without

showing actual malice. Mat 29 ( citing Romero, 648 So. 2d at 870). The court

further found that Saucier had provided no evidence of damages or injury,

explaining that arguments and briefs do not constitute evidence. Id. Thereafter,

the court also determined that Saucier failed to show the allegedly defamatory

statements were false, or that they were made with actual malice. Id. at 30- 32.

Accordingly, the court granted Washington' s special motion to strike, dismissed

Saucier' s suit with prejudice, and awarded Washington attorney' s fees. Id. at 35.

As previously discussed, we find Justice Hughes met his burden of proving a

likelihood of success as to both the falsity of the defamatory statements published

by The Advocate in the June 25, 2019 article, and as to The Advocate' s publication

of those false statements with actual malice. Thus, the instant case is

distinguishable from Lamz and Saucier. Furthermore, Justice Hughes' petition,

which was accompanied by a notarized verification signed by Justice Hughes

attesting to the facts alleged therein, specifically alleges that he has suffered

embarrassment and damage to his reputation as a result of the defamatory

statements. As explained by the Louisiana Supreme Court in Costello, "[ t]he

injury resulting from a defamatory statement may include nonpecuniary or general

damages such as injury to reputation, personal humiliation, embarrassment and

19

mental anguish even when no special damage such as loss of income is claimed."

Costello, 864 So. 2d at 141. Furthermore, Article 971( A)(2) provides that a court,

in making its determination of whether a plaintiff has demonstrated a probability of

success on a defamation claim, " shall consider the pleadings and supporting and

opposing affidavits stating the facts upon which the liability or defense is based."

Emphasis added). Accordingly, based on the allegations contained in Justice

Hughes' verified petition, and the defamatory statements contained in the June 25,

2019 article, we find Justice Hughes has demonstrated a likelihood of success as to

resulting injury.

We also reject The Advocate' s argument that the trial court erred by finding

Justice Hughes met his burden of demonstrating a likelihood of success as to the

resulting injury caused by the defamatory statements because any damage to his

reputation as a result of the challenged defamatory statements is " incremental." As

described in Masson v. New Yorker Mag., Inc., 501 U.S. 496, 111 S. Ct. 2419, 115

L. Ed. 2d 447 ( 1991), the " incremental harm" doctrine measures the reputational

damage caused by challenged defamatory speech against the harm resulting from

the non -actionable remainder of the publication to determine whether the harm

inflicted by the challenged speech is nominal and therefore not actionable. Id. at

522- 23 ( citing The Libel -Proof Plaintiff Doctrine, 98 Harv. L. Rev. 1909 ( 1985)).

In Masson, the plaintiff, a well-known psychoanalyst, brought suit in a California

federal court alleging quotations attributed to him in an article were false and

defamatory. Id. at 499- 502. The defendants, the publishers and author of the

article, moved for summary judgment, arguing Masson, a public figure, could not

prove actual malice. Id. at 508. The federal district court granted summary

judgment, and the United States Ninth Circuit Court of Appeals affirmed, finding

that while several of the quotations had been altered by the author of the article,

Masson could not prove actual malice. The Ninth Circuit also found one passage

20

in particular, which contained a quotation attributed to Masson referring to himself

as an " intellectual gigolo," was not defamatory, or, alternatively, would not be

actionable under the incremental harm doctrine. Id. at 509.

The United States Supreme Court reversed summary judgment in favor of

the defendants, finding the Ninth Circuit erred by concluding the term " intellectual

gigolo" was not defamatory. Id. at 522. The Masson Court additionally found that

application of the incremental harm doctrine was improper because the defamatory

speech Masson complained about was the most damaging speech in the article. Id.

Furthermore, the Masson Court found no support for application of the incremental

harm doctrine under California law or the First Amendment, explaining, in

pertinent part:

Here, we reject any suggestion that the incremental harm doctrine is
compelled as a matter of First Amendment protection for speech. The
question of incremental harm does not bear upon whether a defendant
has published a statement with knowledge of falsity or reckless
disregard of whether it was false or not. As a question of state law, on
the other hand, we are given no indication that California accepts this
doctrine, though it remains free to do so. Of course, state tort law

doctrines of injury, causation, and damages calculation might allow a
defendant to press the argument that the statements did not result in
any incremental harm to a plaintiff' s reputation.

Id. at 523.

As stated in Masson, the First Amendment does not obligate this court to

accept and apply the incremental harm doctrine, and The Advocate concedes that

no Louisiana cases exist applying the doctrine. The cases cited by The Advocate in

support of its argument that this court should invoke the doctrine of incremental

harm all arise from other jurisdictions. 10 We find no support for adoption of the

doctrine under Louisiana law. As noted, the tort of defamation emanates from La.

C. C. art. 2315, which provides, in pertinent part, "[ e] very act whatever of man that

See Cardillo v. Doubleday & Co., 518 F. 2d 638, 639 ( 2d Cir. 1975); Jewell v. NYP Holdings,
Inc., 23 F. Supp. 2d 348, 388 ( S. D.N.Y. 1998); Herbert v, Lando, 781 F. 2d 298, 302 ( 2d Cir.
1986) cert. denied, 476 U. S. 1182, 106 S. Ct. 2916, 91 L.Ed. 2d 545; Ferreri v. Plain Dealer
Publ' g Co., 142 Ohio App. 3d 629, 756 N.E. 2d 712, 723 ( 2001).

21

causes damage to another obliges him by whose fault it happened to repair it." We

find adoption of the incremental harm doctrine to be inconsistent with the spirit

and meaning of La. C. C. art. 2315. Moreover, we note, even were this court to

adopt the incremental harm doctrine, which we expressly decline to do, the

statements challenged by Justice Hughes in the June 25, 2019 article are the most

disparaging in the article. Thus, application of the incremental harm doctrine

would not alter our finding that Justice Hughes demonstrated a likelihood of

success as to the resulting injury of the defamatory statements.

Attorney' s Fees

In its fourth assignment of error, The Advocate asserts that the trial court

erred by failing to dismiss Justice Hughes' defamation action, and erred by failing

to award The Advocate attorney' s fees pursuant to Article 971. As stated above,

Article 971( B) provides, in pertinent part, that " a prevailing party on a special

motion to strike shall be awarded reasonable attorney fees and costs." The trial

court awarded Justice Hughes $ 5, 000. 00 in attorney fees as the prevailing party on

The Advocate' s special motion to strike.

As discussed, we find the trial court did not err by denying The Advocate' s

special motion to strike because Justice Hughes met his burden of demonstrating a

likelihood of success as to his defamation action. Accordingly, The Advocate is

not entitled to attorney' s fees under Article 971( B).

On March 11, 2021, Justice Hughes filed an answer to this appeal, seeking

an increase in the amount of attorney' s fees awarded by the trial court from

5, 000. 00 to $ 10, 000. 00, and also requested attorney' s fees in the amount of

7, 500. 00 for the defense of this appeal.

On October 14, 2021, Justice Hughes filed a motion to amend answer to

appeal, seeking to file an amended answer requesting additional attorney' s fees

based on the complexity of the issues involved in this matter.

22

On October 28, 2021, The Advocate filed a motion to strike Justice Hughes'

motion to amend answer to appeal, arguing the motion is untimely, and was not

served on counsel for The Advocate. Additionally, The Advocate asserts this court

should strike Justice Hughes' amended answer to appeal because it addresses the

quantum of attorney' s fees awarded by the trial court, and there is no record

evidence to support an increase in attorney' s fees at the trial court level.

Louisiana Code of Civil Procedure article 2133 provides, in pertinent part:

A. An appellee shall not be obliged to answer the appeal unless he
desires to have the judgment modified, revised, or reversed in part or
unless he demands damages against the appellant. In such cases, he
must file an answer to the appeal, stating the relief demanded, not
later than fifteen days after the return day or the lodging of the
record whichever is later. The answer filed by the appellee shall be
equivalent to an appeal on his part from any portion of the judgment
rendered against him in favor of the appellant and of which he
complains in his answer.

Emphasis added).

Justice Hughes' original answer to this appeal was timely filed within 15

days of the lodging of the record, as required by La. C. C. P. art. 2133. However,

Justice Hughes' motion to amend answer to appeal was filed almost seven months

after the expiration of the 15 -day time delay set forth in La. C. C. P. art. 2133.

There exists no statutory authority to allow the amendment of an answer outside

the 15 -day time limit provided in La. C. C.P. art. 2133. Landry v. Nobility Homes,

Inc., 488 So. 2d 726, 728 ( La. App. 3d Cir. 1986), writ denied, 491 So. 2d 21 ( La.

1986). Accordingly, we deny Justice Hughes' motion to amend answer to appeal.

As such, we deny The Advocate' s motion to strike Justice Hughes' motion to

amend answer to appeal as moot.

The trial court has much discretion in fixing an award of attorney fees, and

its award will not be modified on appeal absent a showing of an abuse of

discretion. Silwad Two, L.L. C. v. I Zenith, Inc., 2012- 0282 ( La. App. 1st Cir.

12/ 21/ 12), 111 So. 3d 405, 411. Factors to be taken into consideration in

23

determining the reasonableness of attorney fees include: ( 1) the ultimate result

obtained; ( 2) the responsibility incurred; ( 3) the importance of the litigation; ( 4)

amount of money involved; ( 5) the extent and character of the work performed; ( 6)

the legal knowledge, attainment, and skill of the attorneys; ( 7) the number of

appearances made; ( 8) the intricacies of the facts involved; ( 9) the diligence and

skill of counsel; and ( 10) the court' s own knowledge. See Rule 1. 5( a) of the Rules

of Professional Conduct; State, Dep' t of Transp. and Dev. v. Williamson, 597 So.

2d 439, 442 ( La. 1992).

Based on our consideration of the aforementioned factors, and our review of

the record and the legal services involved, we do not find the trial court abused its

discretion by awarding $ 5, 000. 00 in attorney' s fees to Justice Hughes.

Accordingly, we deny Justice Hughes' answer to appeal in part. However, we

find, as the prevailing party, Justice Hughes is entitled to attorney' s fees for the

defense of this appeal. See Williams v. Nexstar Broadcasting, Inc., 11- 887 ( La.

App. 5th Cir. 4/ 10/ 12), 96 So. 3d 1195, 1202. Accordingly, we grant Justice

Hughes' answer to appeal in part, and award him $ 7, 500. 00 in attorney' s fees for

legal services rendered in defense of this appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court' s November

23, 2020 judgment denying the special motion to strike filed by defendant, Capital

City Press, L.L.C. d/ b/ a The Advocate, and awarding plaintiff, Jeff Hughes,

5, 000. 00 in attorney' s fees and court costs. The answer to appeal is denied in part

and granted in part, and we award appellee, Jeff Hughes, $ 7, 500. 00 in attorney' s

fees for defense of this appeal. The motion to amend answer to appeal filed by

appellee, Jeff Hughes, is denied. The motion to strike filed by appellant, Capital

City Press, L.L.C. d/b/ a The Advocate, is denied. All costs of this appeal are

assessed to appellant, Capital City Press, L.L.C. d/b/ a The Advocate.

24

AFFIRMED; ANSWER TO APPEAL GRANTED IN PART; MOTION TO
AMEND ANSWER TO APPEAL DENIED; MOTION TO STRIKE
DENIED; AWARD OF ATTORNEY FEES RENDERED.

25