Carla Rachal v. State of La., Dept. of Wildlife & Fisheries

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-576
consolidated with 05-577

CARLA RACHAL

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF
WILDLIFE & FISHERIES, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT,
PARISH OF RAPIDES, NOS. 203,254 and 203,890,
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Sylvia R. Cooks, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

Daniel E. Broussard, Jr.
Broussard, Bolton, Halcomb & Vizzier
Post Office Box 1311
Alexandria, Louisiana 71309-1311
(318) 487-4589
Counsel for Plaintiffs/Appellees:
Carla Rachal
David McAlpin
Leslie McAlpin

Lewis O. Lauve, Jr.
Special Assistant Attorney General
Post Office Box 307
Alexandria, Louisiana 71309-0307
(318) 449-1937
Counsel for Defendants/Appellants:
State of Louisiana, Department of Wildlife & Fisheries
Kelly Fannin

SULLIVAN, Judge.

Carla Rachal and David McAlpin, employees of the Louisiana Department of

Wildlife and Fisheries (LDWF), sued LDWF and Lieutenant Kelly Fannin for

defamation. Leslie McAlpin, Mr. McAlpin’s wife, sued Defendants for loss of

consortium. The trial court awarded judgment in Plaintiffs’ favor. LDWF and

Lt. Fannin appeal. For the following reasons, we affirm the trial court’s judgment.

Facts

This matter arises out of a report prepared and disseminated by Lt. Fannin. The

report outlines details of an alleged telephone call Lt. Fannin received on August 27,

1999, in which the caller reported that he observed Ms. Rachal and Mr. McAlpin

engaging in sex on a four-wheeler on August 26, 1999. On that date, Ms. Rachal and

Mr. McAlpin were working a complaint of deer stand damage, as assigned by

Lt. Fannin. Lt. Fannin did not prepare a report of the complaint until May 2000.

The trial court outlined the following facts in its Written Reasons for Judgment,

which we adopt as our own:

On July 1, 1999, Ms. Rachel [sic] received a one-day suspension
for being out of uniform and not having her equipment in working order.
Also on July 1, 1999, Mr. McAlpin was suspended one day for failure
to follow his supervisor’s instructions, intentionally or due to
unsatisfactory performance, divulging confidential information supplied
by an informant, and recording the conversation of the agents without
their consent. In both occurrences, it was defendant Fannin who
observed the actions of the plaintiffs that led to the disciplinary actions.
Defendant Fannin initiated the complaint and recommended the
disciplinary action.

On July 12, 1999, plaintiff McAlpin filed an appeal of the
disciplinary action with the State Civil Service Commission. This was
plaintiff McAlpin’s second civil service action against defendant
Fannin. McAlpin and Fannin have a documented tumultuous history.

Ms. Rachal filed a civil service appeal alleging that the
disciplinary action was a result of sex discrimination by defendant
Fannin. Additionally, on July 19, 1999, plaintiff Rachal was given an
employee evaluation of “Needs Improvement” by defendant Fannin. On

August 17, 1999, Rachal filed a Request for Review of the rating
defendant Fannin had given her with the then Secretary of LDWF
Jimmy Jenkins.

On August 26, 1999, defendant Fannin assigned McAlpin and
Rachal to work together at the Sugar Hill Hunting Club area in
Natchitoches Parish. Defendant Fannin had received an undocumented
complaint regarding vandalism of deer stands on the hunting lease and
sent the agents to patrol the area. Defendant Fannin and Agent Joe
Tarver were also working a complaint in the area. McAlpin and Rachal
testified that nothing out of the ordinary occurred that night.

Defendant Fannin testified that on August 27, 1999, he received
the report of sexual misconduct on the part of the plaintiffs at his home.
It was made anonymously by telephone. From that day until May 26,
2000, defendant Fannin never mentioned to anyone with the LDWF or
to the plaintiffs about the report that he received.

On October 8, 1999, Secretary Jenkins granted Rachal’s request
for review and reversed the “Needs Improvement” rating Fannin had
given her. In December of 1999, Fannin filed a petition for damages
against McAlpin in Winn parish. The petition alleged that McAlpin’s
letter of appeal to the Civil Service Commission contained slanderous
and defamatory statements about Fannin. On May 15, 2003, the suit was
dismissed with prejudice for failure to prosecute.

On May 25, 2000, a public hearing was held on Rachal’s Civil
Service appeal in Baton Rouge before a Civil Service referee.
Defendant Fannin was subpoenaed to testify. Agent Tarver and
defendant Fannin rode together from Winnfield to Baton Rouge. On the
ride, defendant Fannin told Agent Tarver about the August 27, 1999
complaint he received regarding McAlpin and Rachal. This was the first
substantiated time that defendant Fannin told anyone about the
complaint he had received. Plaintiff McAlpin testified on behalf of
Rachal at the hearing. The appeal was later found to be valid in
plaintiff’s favor.

. . . Ms. [Christy] Ellington was a secretary at the LDWF Regional
office. . . . Ellington testified that Fannin was mad that Rachal had won
her appeal. Ellington based this testimony on Fannin’s demeanor
following the ruling on the appeal. . . . Ms. Ellington worked in the
office with Fannin for several years and stated, “If you know Kelly, he
doesn’t hide it when he’s mad.”

The day after the Rachal hearing, a meeting of LDWF agents was
held at the Pineville Regional Office to gather documents that had been
subpoenaed by McAlpin’s attorney for his Civil Service hearing, which
was to be held on June 1, 2000 at Pinecrest. . . . [A]t this meeting . . .

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defendant Fannin handed Agent[s] Bonner and Constance the
handwritten document detailing the complaint of sexual misconduct on
the part of the plaintiffs on the night of August 26, 1999, and told them
to review it. Subsequently, defendant Fannin showed the document to
Captain Bryan Poston who was in charge of the region. Captain Poston
called Major Keith LaCaze in Baton Rouge and reported the document.
He had his secretary, Christy Ellington, fax it to Major LaCaze. Ms.
Ellington was told by Agent[s] Bonner and Constance to read the
document.

....

. . . The testimony of Agent[s] Tarver, Constance, and Bonner, as
well as Fannin’s testimony as to what he told Melinda Martin [a
confidential informant Lt. Fannin considered reliable] satisfy the
publication element. Further, Major LaCaze testified that it was not
proper to discuss the complaint outside the LDWF nor was it appropriate
to talk to Tarver, Constance, and Bonner about the complaint.

Plaintiffs denied that they had ever engaged in sexual activities
with one another. The allegations of misconduct were never proven.
Further, McAlpin requested the LDWF to investigate and even offered
to take a polygraph test. The plaintiffs called the president and several
members of the Sugar Hill Hunting Club who attested to the fact that
they were not aware of any report of sexual misconduct by plaintiffs on
the night in question. Major LaCaze spoke with defendant Fannin about
the report and determined it was an unsubstantiated report. Further,
Major LaCaze testified, that in his opinion, based on his knowledge of
McAlpin, he determined that the report was false.

Issues for Review

1) The trial court erred in finding that plaintiffs satisfied the elements of a
defamation claim.

2) The trial court erred by rendering a decision based on conjecture,
supposition, and hearsay.

Standard of Review

Whether defamation has been proven is principally a factual analysis; therefore,

our review is governed by the manifest error standard. When factual findings are

based on determinations regarding the credibility of witnesses, the manifest error

standard requires that we give great deference to the trier of fact’s findings. Rosell

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v. ESCO, 549 So.2d 840 (La.1989). Absent documents or objective evidence that

contradict the witness’s story or the story itself is so internally inconsistent or

implausible on its face that a reasonable trier of fact would not credit the witness’s

story, a trier of fact’s findings based on its decision to credit the testimony of one or

two or more witnesses can virtually never be manifestly erroneous or clearly wrong.

Id.

Discussion

A plaintiff in a defamation case must prove all of the following elements by a

preponderance of the evidence to prevail: defamatory words, publication, falsity,

malice, and resulting injury. Sommer v. State, Dep’t of Transp. and Dev., 97-1929

(La.App. 4 Cir. 3/29/00), 758 So.2d 923, writ denied, 00-1759 (La. 10/27/00), 772

So.2d 122.

Defamatory words are words which tend to harm the reputation of another by

the community’s estimation of him or deterring third persons from associating with

him. Id. The defamatory words must be communicated or published to someone

other than the plaintiff to be actionable. Id.

Words that expressly or implicitly . . . by their nature, tend to injure
one’s personal or professional reputation are considered defamatory per
se. If the plaintiff proves publication of defamatory per se words, the
elements of falsity, injury and malice are presumed, although they may
be rebutted by the defendant.

Id. at 939.

Truth and privilege are defenses to a claim of defamation. La.R.S. 13:3602;

Elmer v. Coplin, 485 So.2d 171 (La.App. 2 Cir.), writ denied, 489 So.2d 246

(La.1986). There are two general classes of privileged communications: (1) absolute

or unqualified, which exists in a limited number of situations, such as certain

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statements by judges and legislators in their official capacities; and (2) conditional

or qualified. A conditional privilege is “applicable if the communication is made (a)

in good faith, (b) on any subject matter in which the person communicating has an

interest or in reference to which he has a duty, (c) to a person having a corresponding

interest or duty.” Toomer v. Breaux, 146 So.2d 723, 725 (La.App. 3 Cir. 1962).

Lt. Fannin’s report that Plaintiffs were seen having sex together on August 26,

1999, was defamatory per se. Sommer, 758 So.2d 923. Defendants argue that

Lt. Fannin was merely “reporting” information provided to him by an anonymous

third party and assert that the caller, not Lt. Fannin, defamed Plaintiffs. They also

argue that the report was privileged because it was prepared in conjunction with

Lt. Fannin’s supervisory duties.

Lt. Fannin’s credibility is the crux of this case, and it was seriously challenged

by Plaintiffs. Lt. Fannin’s superiors, Major LaCaze and Captain Poston, testified that

the federal prosecutor for the district which includes the parishes to which Lt. Fannin

is assigned will not accept a case for prosecution if Lt. Fannin will be a principal

witness for LDWF. Marcus Constance, an LDWF agent, testified that the same is true

of the Winn Parish District Attorney.

Lt. Fannin’s testimony at trial was contradicted in several respects. Agent

Tarver testified that Lt. Fannin told him about the report when they rode together to

Ms. Rachal’s May 25, 2000 hearing on her civil service appeal. Lt. Fannin denied

relating this information to Agent Tarver, testifying that he discussed complaints

about Ms. Rachal with Agent Tarver and simply asked him if he thought there was

something “going on” between Ms. Rachal and Mr. McAlpin. Lt. Fannin testified

that Agents Constance and Bonner picked up his report from a table and read it, but

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they testified that he told them about the report. Lt. Fannin also testified that when

he and Agent Tarver met Plaintiffs on August 26, 1999, Plaintiffs were riding

together on a four-wheeler and that it was unusual for two agents to ride together on

a four-wheeler, while LDWF agents questioned on this issue testified that it is not

unusual for two agents to ride together on a four-wheeler.

Lt. Fannin’s credibility was also called into question by his own actions. The

alleged complaint was serious in nature, but Lt. Fannin did not immediately report the

August 27, 1999 telephone call to his supervisor. Major LaCaze, Captain Poston, and

all of the LDWF agents testified that LDWF policies and procedures require that a

complaint of this nature be immediately reported to Plaintiffs’ supervisors. Major

LaCaze also testified that he believed Lt. Fannin received the telephone call;

however, Wilbert Saucier, Mr. McAlpin’s attorney in his civil service litigation,

testified that Major LaCaze told him he believed Lt. Fannin fabricated the report.

Lastly, Lt. Fannin’s reasons for not reporting the complaint immediately were weak

and simply did not ring true.

Based on the record, the trial court’s acceptance of the testimony of Plaintiffs’

witnesses over Lt. Fannin’s testimony is reasonable, and we find no error with the

trial court’s conclusion that Lt. Fannin did not receive a complaint about Plaintiffs on

August 27, 1999, and that he was not simply reporting a complaint made by an

unknown person.

Even if Lt. Fannin did receive an anonymous call about Plaintiffs, he had to

have a reasonable belief that the caller’s complaint was true not to be liable for

publishing a defamatory statement. Thompson v. Emmis Television Broad., 04-1020

(La.App. 4 Cir. 1/19/05), 894 So.2d 480, writ denied, 05-417 (La. 4/22/05), 899

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So.2d 580. Witnesses in this case included Plaintiffs’ co-employees and

acquaintances in the community. No one, except Lt. Fannin, testified that they

believed the allegations. Indeed, there was very strong testimony that, based on the

witnesses’ personal knowledge of Mr. McAlpin, they considered the complaint

completely unfounded upon hearing it, stating “David wouldn’t do that” or something

similar. Accordingly, we further find that, if Lt. Fannin did receive such a call, his

“belief” that the alleged caller’s statements were true was not reasonable.

Defendants did not establish that the complaint was true or that a privilege is

applicable to Lt. Fannin’s publication of the defamatory report. The LDWF agents

who Lt. Fannin told about the complaint were his subordinates and did not have a

corresponding interest or duty regarding the complaint; therefore, no privilege

existed. See Elmer, 485 So.2d 171. Consequently, Defendants failed to rebut the

presumptions of falsity, malice, and injury, and Plaintiffs prevail.

Disposition

The judgment of the trial court is affirmed. All costs of this appeal are assessed

to the State of Louisiana, Department of Wildlife and Fisheries, and Kelly Fannin.

AFFIRMED.

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