Shelly M. Jambon and Queen Bess Bay, LLC Versus Queen Bess Bay Owners Association, Inc.

SHELLY M. JAMBON AND NO. 21-C-626
QUEEN BESS BAY, LLC
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
QUEEN BESS BAY OWNERS
ASSOCIATION, INC., ET AL. STATE OF LOUISIANA

December 03, 2021

Susan Buchholz
First Deputy Clerk

IN RE QUEEN BESS BAY OWNERS ASSOCIATION, INC., RAYMOND GAUBERT, MICHELLE CARRION,
KENNY LEMOINE, AND JOHN VICTORY

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE DANYELLE M.
TAYLOR, DIVISION "O", NUMBER 817-069

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Hans J. Liljeberg

WRIT GRANTED; JUDGMENT VACATED AND REMANDED

Defendants, Queen Bess Bay Owners Association, Inc. (the “Owners
Association”), Raymond Gaubert, Michelle Carrion, Kenny Lemoine and John
Victory (collectively referred to as the “defendants”), seek review of the trial
court’s August 23, 2021 judgment denying their La. C.C.P. art. 971 motion to
strike the lawsuit filed against them by plaintiffs, Shelly M. Jambon and Queen
Bess Bay, LLC (“QBB”). For reasons stated more fully below, we grant the writ
application, vacate the trial court’s judgment and remand for further proceedings.

This matter involves a lawsuit in which plaintiffs allege defendants made
intentional misrepresentations regarding property dispute issues to the Grand Isle
Town Council and filed a lawsuit they did not intend to pursue, in order to delay
the approval of plaintiffs’ permit to develop the Kings Kove subdivision.
Plaintiffs’ petition includes claims for intentional misrepresentation, abuse of
process, interference with contractual relationships and conspiracy. In response,
defendants filed a motion to strike plaintiffs’ claims pursuant to La. C.C.P. art.
971, alleging that the subject matter of the lawsuit stems from their actions in
furtherance of their right of petition and free speech in connection with a public
issue ‒ that is their opposition to QBB’s development of the Kings Kove
subdivision. Defendants further argued that plaintiffs could not establish a
probability of success on their claims and that plaintiff, Shelly Jambon, did not
have a real or actual interest in her individual capacity.

In their opposition to the motion to strike, plaintiffs argued that defendants
could not bear their initial burden of proving that their lawsuit arose from an act in

furtherance of their right of petition or free speech on an issue of public concern.
Plaintiffs further argued, in the alternative, that they can demonstrate a reasonable
probability of success on one or more of their claims.

Following a hearing, the trial court entered a judgment on August 23, 2021,
granting the motion to strike in part and denying it in part. Specifically, the trial
court granted the motion to strike with respect to Paragraph 6 of plaintiffs’ petition,
which included a general allegation about defendants voicing opposition to the
Kings Kove subdivision. The trial court dismissed this allegation with prejudice.
The trial court denied the motion to strike in all other respects, including
defendants’ request to dismiss the individual claims of Shelly Jambon.

Appellate courts review special motions to strike with the de novo standard
of review because it involves issues of law and examines whether the trial court
was legally correct. Yount v. Handshoe, 14-919 (La. App. 5 Cir. 5/28/15), 171
So.3d 381, 384. The Louisiana legislature enacted La. C.C.P. art. 971 to screen out
meritless claims pursued to chill one’s constitutional rights of petition or free
speech in connection with a public issue. Frigon v. Universal Pictures, Inc., 17-
993 (La. App. 1 Cir. 6/21/18), 255 So.3d 591, 600, writ denied, 18-1868 (La.
1/18/19), 262 So.3d 896. La. C.C.P. art. 971 provides in pertinent 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.

(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.

Courts apply a two-part burden-shifting analysis in determining whether to
grant a motion to strike filed pursuant to La. C.C.P. art. 971. Yount, 171 So.3d at
385. The burden of proof begins with the party filing the motion to strike to prove
that the cause of action arises from an act in the exercise of his right of petition or
free speech under the United States or Louisiana Constitution in connection with a
public issue. Id. Whether speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by
the entire record. Id.

If the mover makes a prima facie showing his petition or speech is
constitutionally protected and in connection with a public issue, the burden shifts
to the plaintiff to demonstrate a probability of success on the claim. Id. In those
cases where more than one claim is alleged in the petition, courts examine the
probability of success of each claim individually. Id.; Melius v. Keiffer, 07-189
(La. App. 4 Cir. 3/12/08), 980 So.2d 167, 172. By its terms, La. C.C.P.
art. 971 applies to a cause of action, not to isolated allegations within a petition
with which a litigant takes issue. Gebre v. City of New Orleans, 14-904, 14-905

(La. App. 4 Cir. 10/7/15), 177 So.3d 723, 733; Louisiana Crisis Assistance Ctr. v.
Marzano-Lesnevich, 878 F.Supp.2d 662, 669 (E.D. La. 7/9/12).

It is unclear from the trial court’s written judgment, as well as from the oral
reasons provided at the hearing, whether the trial court followed the two-part
burden shifting analysis explained above and first determined that defendants made
a prima facie showing their petition or speech was constitutionally protected and in
connection with a public issue. We further note that it appears the trial court
reviewed the allegations in the petition, rather than the specific causes of action in
deciding to grant the motion to strike in part and deny it in part.

Furthermore, in their writ application, defendants point out that the minute
entry from the hearing on the motion to strike indicates the exhibits attached to
their motion to strike were offered, filed and introduced into evidence, but
plaintiffs’ exhibits were not. According to the minute entry and transcript provided
to this Court, plaintiffs’ exhibits, including their supporting affidavits and
transcripts from the Grand Isle City Council meetings, were not introduced into
evidence.

Exhibits not properly and officially offered and admitted into evidence
cannot be considered, even if they are physically filed into the trial court record.
Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88;
Wood Materials, LLC v. City of Harahan, 17-142 (La. App. 5 Cir. 10/2/17), 228
So.3d 293, 295-96. Except as otherwise provided by law, documents attached to
memoranda do not constitute evidence and cannot be considered as such on appeal.
Denoux, 983 So.2d at 88.1 Appellate courts are courts of record and may not
review evidence that is not in the appellate record, or receive new evidence. Id;
La. C.C.P. art. 2164.

Our review of the transcript from the hearing on the motion to strike
indicates that the trial court relied on plaintiffs’ exhibits in rendering its decision
on the motion to strike. Accordingly, we find the trial court erred by ruling on the
motion to strike under these circumstances in the absence of properly admitted
evidence. See Calamia v. Parish of Jefferson, 19-270 (La. App. 5 Cir. 12/30/19),
288 So.3d 278, 280.

For these reasons, we grant the writ application for the limited purpose of
vacating the trial court’s August 23, 2021 judgment and remand for further
proceedings on defendants’ motion to strike.

Gretna, Louisiana, this 3rd day of December, 2021.

HJL
JGG
MEJ

1
An exception exists with respect to summary judgment motions as La. C.C.P. art. 966(D)(2) provides that the court
shall consider any documents to which no objection is made.

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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