Linda Jeane Garman, Et Vir. v. Joyce Jeane Serhan, Et Vir.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-969

LINDA JEANE GARMAN, ET VIR.

VERSUS

JOYCE JEANE SERHAN, ET VIR.

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 78,940, DIV. B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and John D. Saunders
and Jimmie C. Peters, Judges.

REVERSED AND REMANDED.

Daniel G. Brenner
Bolen, Parker, Brenner, Lee & Englesman Ltd.
P. O. Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR DEFENDANTS/APPELLEES:
Joyce Jeane Serhan
Joe Serhan

Mitchel M. Evans, II
416 North Pine Street
DeRidder, LA 70634
(337) 462-5225
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Linda Jeane Garman
Allen "Ike" Garmen

Van C. Seneca
P. O. Box 3747
Lake Charles, LA 70602-3747
(337) 439-1233
COUNSEL FOR DEFENDANTS/APPELLEES:
Joyce Jeane Serhan
Joe Serhan

PETERS, J.

The plaintiffs in this defamation action, Lynda Jeane Garman and Allen

“Ike” Garman, appeal the trial court’s grant of a motion for partial summary

judgment dismissing their claims against the defendants, Joyce Jeane Serhan and

Joe Serhan. For the following reasons, we reverse the trial court judgment and

remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

On December 13, 2007, Lynda Jeane Garman and Allen “Ike” Garman (the

Garmans), who are husband and wife, filed suit against Joyce Jeane Serhan and Joe

Serhan (the Serhans), who are also husband and wife, seeking to recover damages

they claim to have sustained as a result of defamatory statements made about them

by the Serhans to G. Charest Thibodeaux between October 31, 2006, and March 6,

2007. Lynda Jeane Garman and Joyce Jeane Serhan are sisters. The Garmans

asserted in their original petition that the defamatory statements were both oral and

written.

The Garmans asserted in their original petition that sometime between

October 31, 2006, and March 6, 2007, the Serhans contacted Mr. Thibodeaux 1 and

requested that he conduct an appraisal of their immovable property located in

Vernon Parish, Louisiana, “to determine the volume of cut timber allegedly

removed by Petitioners.” The petition further asserts that the Serhans not only

alleged to Mr. Thibodeaux “that Petitioners had cut their timber without

authorization; but, further alleged that Petitioners had also given permission for a

utility company to bury utility lines on her [sic] Defendants’ property without their

1
The Garmans’ petition identifies Mr. Thibodeaux as a certified residential real estate
appraiser professionally associated with the Century 21 organization.

2

knowledge and/or consent.” The Garmans further asserted in their petition that Mr.

Thibodeaux performed a timber cruise of the property on April 24 and 26, 2007, in

the company of the Serhans’ attorney, Clay Williams; and that as a result of his

timber cruise and subsequent investigation, Mr. Thibodeaux concluded that “there

was no evidence that any timber ever existed whatsoever, as alleged by

Defendants.” According to the Garmans’ petition, Mr. Thibodeaux further

concluded “that there was no evidence of any timber removal operations having

been conducted upon Defendants’ property such as stumps, logging equipment

tracks, debris, etcetera.” The petition asserts that Mr. Williams reached the same

conclusion.2

The Garmans further asserted in paragraph XV of their original petition that

the Serhans were dissatisfied with Mr. Thibodeaux’s findings and took further

steps in their assertions against them:

Defendants were notified by both THIBODEAUX and
WILLIAMS of their respective findings that there existed no evidence
of illegal timber removal. Not satisfied, Defendants then sent a letter
to THIBODEAUX on May 3, 2007, alleging that THIBODEAUX had
misled them because “Garman had already confessed to us in October,
2006”, and further accused THIBODEAUX of having colluded with
the Garmans. Defendants then reported THIBODEAUX to the Office
of Louisiana Commissioner for appraisers; the Better Business Bureau;
and the Louisiana Real Estate Appraisal Subcomittee; and the
Louisiana Office of Forestry, alleging that THIBODEAUX committed
fraudulent acts in collusion with Petitioners, all of which necessitated
written responses from THIBODEAUX and Petitioners in conjunction
with investigations conducted by said agencies.

The Serhans answered the Garmans’ petition on February 19, 2008, and

from that time through February 11, 2013, a number of pleadings were filed which

raise other issues not now before this court. On February 11, 2013, the Serhans

2
Mr. Williams is not the Serhans’ counsel of record in the litigation now before us.

3

filed the motion for partial summary judgment now before us. Without

acknowledging that the words attributed to them were ever spoken or reduced to

writing, the Serhans asserted that the Garmans could not carry their burden of

proving they sustained any damages in their defamation claim.

At the February 26, 20133 hearing on the Serhans’ motion, neither litigant

introduced any evidence. Instead, they simply argued the content of the pleadings

and attachments to the pleadings and memoranda filed in the record. Upon

completion of the argument phase, the trial court took the motion under advisement.

On March 18, 2013, the trial court issued written reasons for judgment wherein it

granted the partial summary judgment based on the lack of any medical evidence

of physical or emotional injury suffered by the Garmans as a result of the

defamatory statements. The trial court signed a judgment to this effect on April 15,

2013, and thereafter the Garmans perfected this appeal.

OPINION

The Garmans claim damages for defamation, “a tort which involves the

invasion of a person’s interest in his or her reputation and good name.” Costello v.

Hardy, 03-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139 (citations omitted). “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. (quoting Trentecosta v. Beck, 96-2388, p. 10 (La. 10/21/97), 703 So.2d

552, 559). In this matter, the trial court granted the Serhans’ motion for partial

3
The hearing related to other issues in the litigation as well. However, those issues are
not now before us.

4

summary judgment based on its conclusion that there was an absence of factual

support for the “resulting injury” element of the Gramans’ defamation claim.

It is well-settled that “[a]ppellate review of the granting of a motion for

summary judgment is de novo, using the identical criteria that govern the trial

court’s consideration of whether summary judgment is appropriate.” Smitko v.

Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755 (citations

omitted). Prior to August 1, 2012, the evidentiary burden in summary judgment

matters was set forth in La.Code Civ.P. art. 966(B)(emphasis added), as follows:

The judgment sought shall be rendered forthwith 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.

However, by 2012 La. Acts No. 257, § 1, the Louisiana Legislature

significantly changed La.Code Civ.P. art. 966, and one of those changes included

amending and restructuring La.Code Civ.P. art. 966(B).4 The language cited above

was moved to a new subparagraph designated as La.Code Civ.P. art. 966(B)(2), but

without the words “on file.” To emphasize the significance of the deletion of these

two words, the legislature added a subparagraph designated as La.Code Civ.P. art.

966(E)(2)(emphasis added), which provided that “[o]nly evidence admitted for

purposes of the motion for summary judgment shall be considered by the court in

its ruling on the motion.” Still, the 2012 amendment did not change the burden of

proof applicable to a motion for summary judgment.

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
4
We note that the Louisiana Legislature again substantially amended La.Code Civ.P. art.
966 by 2013 La. Acts No. 391, § 1, and that legislation again affected the burden of proof
elements of the Article. However, the 2012 version of La.Code Civ.P. art. 966 was in effect
from August 1, 2012 through July 31, 2013, and it governs the February 2013 summary
judgment hearing in this case.

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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 action, 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 of fact.

La.Code Civ.P. art. 966(C)(2).

The Serhans, as movants, had the burden of proof on their motion, because

they did not bear the burden of proof at trial, they needed only to “point out to the

court that there is an absence of factual support for one or more elements essential

to” the Garmans’ claims. Id. The Serhans failed in their burden of proof. They

offered no evidence in support of their motion, and the trial court was left with no

properly admitted evidence for it to consider. La.Code Civ.P. art. 966(E)(2). 5

“Evidence not properly and officially offered and introduced shall not be

considered, even if it is physically placed in the record.” Adams v. Allstate Ins. Co.,

01-1244, p. 6 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169, 1173 (citations omitted).

We find that the trial court erred in granting the motion for partial summary

judgment.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s judgment granting the

motion for partial summary judgment dismissing the defamation claims of Lynda

Jeane Garman and Allen “Ike” Garman against Joyce Jeane Serhan and Joe Serhan

and remand the matter to the trial court for further proceedings. We assess all

costs of this appeal to Joyce Jeane Serhan and Joe Serhan.

REVERSED AND REMANDED.

5
As that Article read between August 1, 2012, and July 31, 2013.

6