Paul A. Lemke v. Keiser & Auzenne, LLC.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-893

PAUL A. LEMKE

VERSUS

KEISER & AUZENNE, L.L.C., ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 217,996
HONORABLE BERT DEXTER RYLAND, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Oswald A. Decuir, Judges.

AFFIRMED.

Michael John O’Shee
Edward E. Rundell
GOLD, WEEMS, BRUSER, SUES & RUNDELL
P. O. Box 6118
Alexandria, LA 71307-6118
Telephone: (318) 445-6471
COUNSEL FOR:
Defendants/Appellees - Keiser & Auzenne, L.L.C. and Anna
Ferguson

Paul A. Lemke, III
P. O. Box 595
Harrisonburg, LA 71340
Telephone: (318) 744-5431

THIBODEAUX, Chief Judge.

Plaintiff-appellant, Paul A. Lemke, III (Lemke), appeals the grant of an

exception of prematurity that resulted in the dismissal of his defamation action.

Lemke, an attorney, sued the defendants-appellees, the law firm of Keiser &

Auzenne, L.L.C. and attorney, Anne Ferguson (appellees), for damages he allegedly

suffered because of statements made about him in legal pleadings. The pleading at

issue was filed by the appellees in a separate lawsuit in which Lemke and the

appellees represented opposing parties. The trial court granted the exception of

prematurity, finding that the defamation action could not be filed until the final

determination of the lawsuit in which the alleged defamatory statements were made.

We find no error in the judgment of the trial court. The judgment is

affirmed.

ISSUE

We must decide whether an attorney can bring a separate action for

defamation against his or her opposing counsel for filing allegedly libelous pleadings

before the lawsuit, out of which the offending statements arose, is finalized.

FACTUAL BACKGROUND

In the matter titled and numbered Succession of Carol Finnegan, docket

number 39,558, 7th Judicial District Court, Parish of Concordia, appellees filed a

motion challenging, among other things, the appointment of the executor to that estate

on behalf of their clients, the heirs of Carol Finnegan. A pleading titled “First

Supplemental and Amending Motion and Order Contesting Appointment of

Independent Executor, Opposition to Probate of Testament” was later filed.

According to Lemke, the attorney for the executor, the pleading contained defamatory

remarks regarding Lemke and his client. Lemke withdrew as counsel in that action

and subsequently filed a petition for damages in the parish of his domicile, Rapides.

In that suit, Lemke made the following pertinent allegation regarding defamation:1

Petitioner avers that in the defendant’s [sic] pleading
the defendants have alleged Paul A[.] Lemke[,] III[,]
engaged in fraud and misrepresentation during the course
of his representation of the Estate of Carol Finnegan,
specifically that Paul A[.] Lemke[,] III[,] misled the heirs
of the decedent. Further[,] the defendants specifically
stated in their pleading that Paul A[.] Lemke[,] III[,] made
fraudulent misrepresentations to the heirs of the decedent.

Appellees filed an exception of prematurity. After a contradictory

hearing was held on the issue, the trial judge issued the following reasons for his

judgment:

Attorney Paul A. Lemke, III filed a lawsuit against
the law firm of Keiser & Auzenne[,] LLC and Anna
Ferguson[,] seeking damages for allegations in the
Succession of Carol Finnegan[,] Suit No. 39,558, Seventh
Judicial District Court, Concordia Parish. The pleadings
apparently alleged fraudulent conduct on the part of Mr.
Lemke. The defendants filed an exception of prematurity
urging that the initial litigation must be completed prior to
filing of a suit on libelous pleadings. Numerous cases
support this position when the suit is one against a party to
the original litigation. Mr. Lemke attempts to distinguish
this situation from a suit involving the attorneys to the
original action. The Court failed to see the distinction and
finds that the original litigation should be concluded prior
to suits being filed against a party or attorney involved in
the original suit.

The court signed a judgment granting appellees’ exception of prematurity and

dismissing Lemke’s petition.

In Lemke’s appeal, he relies heavily on the first circuit’s decision in

James v. Clark, 99-2005 (La.App. 1 Cir. 9/22/00), 767 So.2d 962, to support his

contention that his action was not prematurely filed. He argues that the James court

held that an attorney’s prescriptive period for filing a defamation action against his

1
The record does not contain a copy of any of the pleadings filed in the Concordia Parish
succession proceeding.

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opposing counsel is not suspended or interrupted while the underlying lawsuit, out

of which the claim arose, is pending. He claims, therefore, that he had one year from

the date the allegations were made to seek damages for the alleged defamation and

was obliged to file his action or risk losing his right to sue.

Lemke additionally argues that there is no requirement to wait until the

underlying lawsuit is resolved before filing his action because the suit is solely

against opposing counsel and does not include the parties to the underlying litigation.

He claims that because the clients of the appellees did not verify the allegedly

defamatory pleadings prior to them being filed by their counsel, the appellees were

not acting as their mandataries when the motion was filed. According to Lemke, the

attorneys, therefore, are solely liable for the offending comments, and he is not

required to await the outcome of the underlying proceedings before filing his suit.

The appellees, on the other hand, argue that the trial court did not err in

granting their exception of prematurity. They state that the trial court correctly relied

upon established case law, which holds that when defamation and related actions

arise as a part of ongoing litigation, those claims are not actionable until conclusion

of the underlying lawsuit. This is necessary, they argue, so that the litigants in the

underlying action may be allowed to prove the truth or falsity of the alleged

defamatory statements.

LAW AND DISCUSSION

This central issue of this appeal is whether Louisiana’s approach to

actions for defamation arising out of statements made by parties during judicial

proceedings (also known as the qualified privilege) extends to statements made by the

attorneys representing parties in ongoing proceedings. See Lees v. Smith, 363 So.2d

974 (La.App. 3 Cir. 1978). Although we have found no cases directly addressing the

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application of the qualified privilege to statements made by lawyers during their

representation of others in litigation, the appropriate scope of the qualified privilege

is apparent to us through an analysis of its application in reported cases thus far.

First, we determined that Louisiana case law recognizes a qualified

privilege that provides parties to pending litigation the protection from being sued for

defamatory statements made during judicial proceedings. Union Serv. & Maint. Co.,

Inc. v. Powell, 393 So.2d 94 (La.1980)(Watson, J., concurring); Lees, 363 So.2d 974.

It necessarily follows that during this time the one-year period that applies to the

filing of a defamation action is suspended. See James, 767 So.2d 962. We also note

that this privilege is considered “qualified” because it is not absolute. See Union

Serv., 393 So.2d 94 (Watson, J., concurring). This means that a party is safe from an

action for defamation pending the termination of the underlying litigation; however,

any such “statements made by them in judicial proceeding[s] must be material and

must be made without malice and with probable cause.” Lees, 363 So.2d at 979

(citations omitted). Moreover, as was noted by Justice Watson in his concurrence in

Union Serv., 393 So.2d 94, the “[p]remature trial of such thorny issues should be

avoided. It may develop that trial is never necessary. The truth of defamatory

statements is a statutory defense. L.S.A.-R.S. 13:3602.” Id. at 99.

We have further concluded that the question of whether the qualified

privilege rule will apply to an individual’s statements made during litigation hinges

on whether the alleged defamatory statements are material to the ongoing litigation

so that it is necessary for the suit to be finalized before the cause of action can arise.

See Ortiz v. Barriffe, 523 So.2d 896 (La.App. 4 Cir.), writ denied, 531 So.2d 273

(La.1988); Udell, Inc. v. Ascot Oils, Inc., 177 So.2d 178 (La.App. 2 Cir. 1965). In

other words, we find that as long as the offending comments arise during litigation

and out of the same set of operational facts as those set forth in the underlying claim,
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any defamation action is barred pending resolution of the pending litigation. See

Ortiz, 523 So.2d 896. We reject the contention that the status of an individual as a

“party” to the underlying litigation is an absolute necessity in order for this rule to

apply. Id.

In this case involving attorney Lemke, the trial court found that the

defamation action filed by him against his opposing counsel was premature,

obviously recognizing that the qualified privilege applies to the facts of this case.

The trial court rejected Lemke’s argument that he did not have to await the outcome

of the underlying proceeding before filing his defamation suit based on the fact that

it did not involve the parties to the underlying succession proceeding. The trial court

only stated in regards to this argument that it “. . . fails to see the distinction and finds

that the original litigation should be concluded prior to suits being filed against a

party or attorney involved in the original suit.”

We agree with the trial court. On appeal, Lemke unsuccessfully attempts

to distinguish the facts of his case from the line of cases that prohibit litigation of

defamation actions until the underlying suit is finalized. He attempts to avoid the rule

by arguing that the case of James v. Clark, 99-2005 (La.App. 1 Cir. 9/22/00), 767

So.2d 962, found an attorney’s lawsuit for defamation against her opposing counsel

to be prescribed because it was filed more than one year after the alleged defaming

statements were made. Lemke argues that the James case recognizes that the

qualified privilege does not apply to statements made by lawyers in litigation.

The James decision does not support this argument. James involved a

lawsuit filed by an attorney against her opposing counsel for statements allegedly

made about her at the conclusion of certain discovery depositions. Id. Attorney

James failed to file her lawsuit for defamation within one year of the date on which

the alleged defamatory comments were made, and the trial court sustained an
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exception of prescription filed by opposing counsel in regards to the defamation

action. Id. On appeal, attorney James argued that the one-year prescriptive period

for her action was suspended until the underlying proceeding was terminated, relying

on Ortiz, 523 So.2d 896, for support. The James court found Ortiz distinguishable

from the facts before it, reasoning that “ . . . the alleged defamation was not in the

underlying suit, but occurred on a date the underlying suit was still pending.” James,

767 So.2d at 964. The court ruled that attorney James’ defamation action, therefore,

had prescribed. Id.

We find the James’ court’s recognition that the alleged defamation was

not made “in the underlying suit,” to be a key point. James, 767 So.2d 962. We

believe the court intended to differentiate between those statements that are material

to the underlying litigation and those that are not. Id. In other words, we believe the

James court recognized that the comments at issue that did not arise out of the same

set of operational facts as those in the underlying litigation and, as a result, found that

the qualified privilege did not apply in this case. Id. For that reason, there was no

suspension of the prescriptive period for the filing of attorney James’ action while the

underlying litigation was being resolved. Id. That being said, we conclude that

Lemke’s reliance on James is misplaced.

In regard to the specific facts of this case, we find that the averments that

gave rise to Lemke’s defamation action material to the underlying motion to have the

executor removed from his position. The averments were made against attorney

Lemke and his client (the executor) and bear directly on the issue of whether the

executor should be removed from his position. Even though the defamation action

was filed by Lemke in a separate court, his action was correctly dismissed pending

termination of the underlying action. See Ortiz, 523 So.2d 896; see also, Lees, 363

So.2d 974. This is necessary for all of the reasons cited in the decisions above. It is
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further necessary to bar the action, under the facts of this case, in order to avoid the

simultaneous litigation of identical issues in different courts, which could result in

different findings. We, therefore, conclude that because Lemke’s action for

defamation arose out of the same set of operational facts as those at issue in the

underlying litigation, his defamation action was premature.

CONCLUSION

We find no error in the judgment of the trial court, granting the exception

of prematurity in favor of Keiser & Auzenne, L.L.C. and Anne Ferguson.

Accordingly, the judgment of the trial court is affirmed and all costs of this appeal are

assessed to plaintiff-appellant, Paul A. Lemke, III.

AFFIRMED.

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