Morris J. Baudoin v. Bravo Drilling, LLC

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-0808

MORRIS J. BAUDOIN

VERSUS

BRAVO DRILLING, LLC, ET AL

************

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20092024
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Jimmie C. Peters, James T. Genovese, and David E. Chatelain,*
Judges.

AFFIRMED.

Mark D. Plaisance
Attorney at Law
P. O. Box 709
Baker, LA 70704-0709
(225) 775-5297
COUNSEL FOR PLAINTIFF/APPELLANT:
Morris J. Baudoin

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Tracy E. Kern
Jennifer L. Englander
John L. Duvieilh
Katherine L. Winters
Jones, Walker, Waechter, Poitevent, Carrére & Denégre
201 St. Charles Avenue, 47th Floor
New Orleans, LA 70170-5100
(504) 582-8134
COUNSEL FOR DEFENDANTS/APPELLEES:
Bravo Drilling LLC, et al.

PETERS, J.

The plaintiff, Morris J. Baudoin, appeals a trial court judgment granting

summary judgment in favor of the defendant, Bravo Drilling, L.L.C. (formerly known

as Axxis Drilling, L.L.C. and/or Axxis Drilling, Inc.), after determining that the

alleged defamatory words of a Bravo Drilling employee were not the cause of his

damages. For the following reasons, we affirm.

DISCUSSION OF THE RECORD

Mr. Baudoin, a former employee of Bravo Drilling, filed suit seeking damages

for defamation against his former employer. In his petition, he alleged that he was

on the verge of being hired by Helix Energy Solutions (Helix), a Houston, Texas

based company, when Bravo Drilling provided false information regarding his former

employment with that company to HireRight, Inc., a company utilized by Helix to

perform background checks on prospective employees. He asserted in his petition

that Bravo Drilling provided false information to Helix concerning his actual length

of employment with Bravo Drilling, his correct job description with that company,

and prior terminations of his employment with Bravo Drilling. Mr. Baudoin alleged

that based on this erroneous information, Helix rescinded the formal offer of

employment it had previously tendered to him, and as a result, he lost all the benefits

associated with the employment opportunity.

As a part of its response to Mr. Baudoin’s suit, Bravo Drilling filed a motion

for summary judgment. In support of that motion, Bravo Drilling introduced

affidavits by Donna M. Boudreaux, the Corporate Human Resources Manager for

Helix, and Lisa Williams, Bravo Drilling’s Human Resources Manager.

In her affidavit, Ms. Boudreaux asserted that her duties included involvement

in Helix’s hiring decisions and that she was personally involved in its ultimate

decision not to hire Mr. Baudoin. According to Ms. Boudreaux, the decision not to

hire Mr. Baudoin was based primarily on his 2001 conviction for domestic violence

and not only on information that may have been provided to HireRight by Bravo

Drilling. Ms. Boudreaux asserted in her affidavit that Helix has as its policy not to

hire violent offenders to work offshore.

Ms. Williams acknowledged in her affidavit that she provides employment

information concerning former employees of Bravo Drilling to prospective

employers. With regard to the information she provided to HireRight, Ms. Williams

stated that the information was not false and, if inaccurate, was made in good faith

and for the legitimate purpose of verifying Mr. Baudoin’s employment with Bravo

Drilling.

Mr. Baudoin did not appear at the hearing on the motion for summary judgment

and offered no evidence in support of his position in opposition. After the hearing,

the trial court rendered summary judgment in favor of Bravo Drilling and dismissed

Mr. Baudoin’s suit.

On appeal, Mr. Baudoin raises two assignments of error:

A. A fact is material if it potentially ensures or precludes recovery, affects
a litigant’s ultimate success, or determines the outcome of a legal
dispute. The existence of such a fact precludes summary judgment.
Because the court relied upon Donna Boudreaux’s affidavit that
presented a factual determination as to why Morris Baudoin was not
hired, it committed error by granting summary judgment.

B. A former employer who provides information about an employee to a
prospective employer can enjoy a qualified privilege if the information,
even if defamatory, is provided in “good faith.” Yet, when a person’s
good faith is at issue, summary judgment is never appropriate. The trial
court erred, therefore, when it found that the defendant could rely upon
a qualified privilege to defeat plaintiff’s claim via summary judgment.

2

OPINION

A summary judgment shall be granted “if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to material fact, and that mover is entitled to

judgment as a matter of law.” La.Code Civ.P. art. 966(B). In Hines v. Garrett, 04-

806, pp. 1-2 (La. 6/25/04), 876 So.2d 764, 765-66 (alteration in original), the supreme

court discussed the law pertaining to summary judgment procedure:

We review a district court’s grant of summary judgment de novo,
viewing the record and all reasonable inferences that may be drawn from
it in the light most favorable to the non-movant. Summary judgment is
warranted only if “there is no genuine issue as to material fact and [ ] the
mover is entitled to judgment as a matter of law.” La.Code Civ. Proc.
art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s
role is not to evaluate the weight of the evidence or to determine the
truth of the matter, but instead to determine whether there is a genuine
issue of triable fact. All doubts should be resolved in the non-moving
party’s favor.

A fact is material if it potentially insures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the
legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27
(La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which
reasonable persons could disagree; if reasonable persons could reach
only one conclusion, there is no need for trial on that issue and summary
judgment is appropriate. Id.

Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant.
However, if the movant will not bear the burden of proof
at trial on the matter that is before the court on the motion
for summary judgment, the movant’s burden on the motion
does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point
out to the court that there is an absence of factual support
for one or more elements essential to the adverse party’s
claim, motion, or defense. Thereafter, if the adverse party
fails to produce factual support sufficient to establish that
he will be able to satisfy his evidentiary burden of proof at
trial, there is no genuine issue of material fact.

3

At issue here is whether the provision of allegedly false information to

HireRight and, ultimately, Helix, by Bravo’s employee defamed Mr. Baudoin.

Defamation is a tort which involves the invasion of a person’s
interest in his or her reputation and good name. Costello [v. Hardy],
2003-1146 at p. 12, 864 So.2d [129] at 139. Four elements are
necessary to establish a defamation cause of action: (1) a false and
defamatory statement concerning another; (2) an unprivileged
publication to a third party; (3) fault (negligence or greater) on the part
of the publisher; and (4) resulting injury. Id. The fault requirement is
often set forth in the jurisprudence as malice, actual or implied. Id.; see
Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d
196, 198 (La.1980) (which also considers falsity as a fifth and separate
element). 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. Costello, 2003-1146 at p. 12, 864 So.2d at 139-140.
If even one of the required elements of the tort is lacking, the cause of
action fails. Costello, 2003-1146 at p. 12, 864 So.2d at 140.

Defamatory words are, by definition, words which tend to harm
the reputation of another so as to lower the person in the estimation of
the community, to deter others from associating or dealing with the
person, or to otherwise expose a person to contempt or ridicule.
Costello, 2003-1146 at p. 13, 864 So.2d at 140. Words that convey an
element of personal disgrace, dishonesty, or disrepute are defamatory.
Id. The question of whether a communication is capable of a particular
meaning and whether that meaning is defamatory is ultimately a legal
question for the court. Id. The question is answered by determining
whether a listener could have reasonably understood the communication,
taken in context, to have been intended in a defamatory sense. Id. To be
actionable, the words must be communicated or “published” to someone
other than the plaintiff. Id.

Even when a plaintiff makes a prima facie showing of the
essential elements of defamation, recovery may be precluded if the
defendant shows either that the statement was true, or that it was
protected by a privilege, absolute or qualified. Costello, 2003-1146 at
p. 15, 864 So.2d at 141. Additionally, the First Amendment freedoms
afford, at the very least, a defense against defamation actions for
expressions of opinion. Cooksey v. Stewart, 41,336, p. 7 (La.App. 2nd
Cir.8/23/06), 938 So.2d 1206, 1211, writ denied, 2006-2348
(La.12/8/06), 943 So.2d 1087. A pure statement of opinion, which is
based totally on the speaker’s subjective view and which does not
expressly state or imply the existence of underlying facts, usually will

4

not be actionable in defamation. Id.; Bussie v. Lowenthal, 535 So.2d
378, 381 (La.1988). That is because falsity is an indispensable element
of any defamation claim, and a purely subjective statement can neither
be true nor false. Cooksey, 41,336 at p. 7, 938 So.2d at 1211; Bussie,
535 So.2d at 381. The opinion may be ostensibly in the form of a
factual statement if it is clear from the context that the speaker did not
intend to assert another objective fact, but only his personal comment on
the facts which he had stated. Cooksey, 41,336 at p. 7, 938 So.2d at
1212. The crucial difference between a statement of fact and opinion
depends on whether ordinary persons hearing or reading the matter
complained of would be likely to understand it as an expression of the
speaker’s or writer’s opinion, or as a statement of existing fact.
Mashburn v. Collin, 355 So.2d 879, 885 (La.1977).

Greene v. State ex rel. Dept. of Corrs., 08-2360, pp. 3-5 (La.App. 1 Cir. 6/19/09), 21
So.3d 348, 351-52.

In rendering summary judgment, the trial court stated the following:

So I do find that you all are entitled to summary judgment in this
matter, that you have shown that there is no material issue of fact as to
whether his failure to obtain employment with Helix had any
relationship to the information provided by Bravo.

So I don’t think we even have to reach the issue of whether there
was a qualified privilege, although this court certainly feels that there
was.

But, based on the fact that the failure to hire had nothing to do
with the report, I’m going to grant summary judgment.

In other words, the trial court concluded that Mr. Baudoin had failed to establish the

“resulting injury” element of his defamation action.

After reviewing the record, we find no error in the trial court’s grant of Bravo

Drilling’s summary judgment. With Ms. Boudreaux’s affidavit, Bravo Drilling

successfully pointed out to the trial court an absence of factual proof for at least one

of the essential elements of defamation. Mr. Baudoin failed to produce factual

support sufficient to establish that he could satisfy his evidentiary burden of proof at

the trial on the merits. Therefore, there is no genuine issue of material fact as to this

issue, and Bravo Drilling is entitled to judgment as a matter of law. La.Code Civ.P.

5

art. 966(C)(2).

Because we find no error in the trial court’s judgment, we need not address the

qualified privilege issue raised in the second assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the judgment of the trial court granting

summary judgment in favor of Bravo Drilling, L.L.C. We assess all costs to Morris

J. Baudoin.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-
16.3, Uniform Rules, Courts of Appeal.

6