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Yount v. Handshoe

Court of Appeals of Louisiana, Fifth Circuit

May 28, 2015

CHRIS E. YOUNT
v.
DOUGLAS K. HANDSHOE, SLABBED.ORG, SLABBED NEW MEDIA, LLC AND JACK E. " BOBBY" TRUITT

Page 382

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 736-680, DIVISION " D" . HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING.

CHRIS E. YOUNT, I.P.P., Jefferson, Louisiana, PLAINTIFF/APPELLANT.

RAMONA FERNANDEZ, ATTORNEY AT LAW, JANEY LAMAR, STUDENT PRACTITIONER, Stuart H. Smith Law Clinic & Center for Social Justice, Loyola Law School, New Orleans, Louisiana, COUNSEL FOR MINOR CHILD.

CONNIE S. MONTGOMERY, ATTORNEY AT LAW, Kenner, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson.

OPINION

Page 383

[14-919 La.App. 5 Cir. 2] ROBERT A. CHAISSON, J.

Plaintiff, Chris E. Yount, appeals the ruling of the trial court granting defendant Douglas Handshoe's Louisiana Code of Civil Procedure Article 971 special motion to strike and dismissing Mr. Yount's defamation and related claims. Upon our de novo review, and for the reasons discussed herein, we reverse the trial court's ruling and remand this case for further consideration consistent with our ruling.

FACTS & PROCEDURAL HISTORY

This defamation and invasion of privacy case arises from a series of posts and comments authored by Mr. Handshoe and codefendant Jack E. Truitt on www.slabbed.org, an internet website owned and operated by Mr. Handshoe and his company, New Slabbed Media, LLC, which reports information on various private and public individuals, entities, and events in the Gulf South region, including southeastern Louisiana and New Orleans. Mr. Yount is a paralegal and process server who had served Mr. Handshoe [14-919 La.App. 5 Cir. 3] process in other defamation suits unrelated to the instant case.[1]

On February 13, 2014, Mr. Handshoe published on www.slabbed.org a pornographic drawing authored by Mr. Yount's 13-year-old son that had previously been filed with the court as part of Mr. Yount's divorce proceedings in the 24th Judicial District Court. Captions and comments authored by Mr. Handshoe and Mr. Truitt underneath the drawing described its graphic nature and clearly identified the author as a minor child and the divorce proceedings in which he was involved.

Subsequent to this initial publication, the trial judge overseeing the divorce proceedings sealed parts of the record, including the pornographic drawing, and ordered the drawing removed from the internet. Notice of copyright infringement pursuant to

Page 384

the Digital Millennium Copyright Act was sent to the webhost of www.slabbed.org, who also provided Mr. Handshoe with a copy of the trial court's order. On February 18, 2014, the blog post containing the drawing as well as the www.slabbed.org website was taken down by the webhost in response to the copyright infringement notice and violations of the webhost's terms of service. Mr. Handshoe subsequently found a new webhost, brought the website back online, and republished the posts containing the pornographic drawing. On at least two separate occasions in February and March of 2014 after the evidence had been placed under seal by the court, Mr. Handshoe authored additional posts where he published the drawing together with comments that clearly identified the minor child author and his father.

[14-919 La.App. 5 Cir. 4] On March 20, 2014, Mr. Yount filed a petition for injunctive relief and damages under seal alleging defamation per se, intentional infliction of emotional distress, invasion of privacy, and cyberstalking. In particular, Mr. Yount alleges that Mr. Handshoe's comments constituted defamation per se or libel by innuendo by insinuating inappropriate and illegal sexual relations with the minor child. In response to this petition, Mr. Handshoe filed a motion to dismiss on the pleadings and a special motion to strike pursuant to Louisiana Code of Civil Procedure Article 971. Mr. Handshoe argues that his blog posts are substantially true and/or based on reasonable opinion, and that his comments are protected under the First Amendment freedom of speech.[2]

At the motion hearing, the trial court found Mr. Handshoe's blog posts to be acts in furtherance of his right of petition and free speech under the United States and Louisiana Constitutions in connection with a public issue pursuant to the definition of such actions provided in Louisiana Code of Civil Procedure Article 971 (F)(1)(b). The trial court also found that since " public affairs" were involved in this case, there could be no defamation per se (citing Williams v. Nexstar Broadcasting, 11-887 (La.App. 5 Cir. 04/10/12), 96 So.3d 1195), and, applying the four-part test for defamation set forth in Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 07/10/06), 935 So.2d 669, found Mr. Yount unlikely to succeed on his claim for defamation. The trial court then granted Mr. Handshoe's special motion to strike, awarded costs to Mr. Handshoe, and dismissed all of Mr. Yount's claims. Mr. Yount filed this timely appeal.

[14-919 La.App. 5 Cir. 5] LAW & ANALYSIS

Mr. Yount argues that the trial court erred in its application of the Article 971 special motion to strike because he is a private figure and the claims arise out of comments made in ...


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