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Breen v. Holmes

Court of Appeals of Louisiana, First Circuit

December 7, 2017

KACIE MAGEE BREEN
v.
JEANIE MCANDREW HOLMES, KIMBERLY JO GRAHAM, "MANDEVILLENATIVE, " AMANDA TERRELL, "BL0NDE4U, " "BREEN TEAM, " JENAFER MULKEY SHERIDAN, TONI "WHODAT" HAWKINS, NIKKI COSTANZA, DESIREE WAGUESPACK MAESTRI, "WEARESINKINGFAST, " SHELDON FLEMING, AND DIANNE ARNDT

         On Appeal from the 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana Trial Court No. 2016-10080 The Honorable Scott Gardner, Judge Presiding

          Richard Ducote Covington, Louisiana Attorney for Plaintiff/Appellant, Kacie Magee Breen

          Anne Spell Covington, Louisiana Attorney for Defendants/ Appellees, Dianne Arndt and Amanda Terrell

          James R. Nieset, Jr. Kristopher M. Gould Kelsey L. Jarrett New Orleans, Louisiana Attorneys for Defendant/Appellee, Desiree Waguespack Maestri.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         This is an appeal of a judgment granting a special motion to strike, filed pursuant to Louisiana Code of Civil Procedure article 971, and dismissing the plaintiffs defamation claims against certain defendants. We affirm.

         FACTS AND PROCEDURAL HISTORY

         On March 1, 2015, Kacie Magee Breen shot and killed her husband, Wayne Breen, a St. Tammany Parish physician. She maintains she was defending herself from an attack and reasonably believed she was in imminent danger of death or great bodily harm. Following the shooting, local media attention focused on Dr. Breen's death, the St. Tammany Parish coroner's classification of the death as a homicide, the criminal investigation that resulted in Breen not being arrested, charged, indicted, or prosecuted for her husband's death, and Breen's actions related to Dr. Breen's estate.

         In January 2016, Breen filed suit alleging the defendants defamed her in internet posts commenting about events before, at the time of, and after Dr. Breen's death. She claimed all the statements about her, including those calling her a murderer, were false and caused her shame, humiliation, discomfort, loss of reputation, public ridicule, loss of income, and mental anguish.

         Three of the defendants, Dianne Arndt, Desiree Waguespack Maestri, and Amanda Terrell, filed a special motion to strike Breen's claims. They asserted the statements attributed to them were expressions of opinion made without knowing or reckless falsity about a matter of public concern and, therefore, are protected by the free speech guarantees of both the United States and Louisiana constitutions. The defendants claimed their statements were made while discussing and sharing views on closed internet sites dedicated to discussing Dr. Breen's death, and following news reports that Breen would not be arrested for killing him. They argued Breen's suit is meritless and was brought to chill their exercise of free speech. Breen opposed the special motion to strike, arguing the motion is inapplicable to this suit because the defendants' statements were not made about an issue of public interest, and she was not and is not a public figure.

         The trial court granted the special motion to strike in favor of Arndt and Maestri and denied it as to Terrell. Breen appeals the judgment dismissing her claims against Arndt and Maestri.[1]

         ANSWER TO APPEAL

         Terrell filed an "answering brief on appeal, " seeking review of the denial of her special motion to strike and asking this court to modify, revise, or reverse the judgment to conform it with the ruling in favor of Arndt and Maestri. An appellee desiring to have a judgment modified, revised, or reversed must answer the appeal and state the relief demanded not later than fifteen days after the return day or the lodging of the record, whichever is later. La. Code Civ. Pro. art. 2133. Here, the return date was November 30, 2016. The record was lodged December 6, 2016. Terrell filed her answering brief January 3, 2017, more than fifteen days after the lodging date. Consequently, Terrell's answer to Breen's appeal was untimely. We find no merit to Terrell's assertion that supplementation of the appellate record with an amended judgment affected the date of lodging.[2] Accordingly, Terrell's answer to Breen's appeal is dismissed.

         SPECIAL ...


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