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Dileo v. Harry

Court of Appeals of Louisiana, Fifth Circuit

December 13, 2017

SANTO A. DILEO
v.
JAMES A. HARRY

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 67, 135, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

          FOR PLAINTIFF/APPELLANT, SANTO A. DILEO Santo A. Dileo, Sr.

          FOR DEFENDANT/APPELLEE, JAMES A. HARRY James A. Harry

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Stephen J. Windhorst

          JUDE G. GRAVOIS JUDGE

         Plaintiff/appellant, Santo Dileo, appeals the trial court's dismissal of his invasion of privacy and defamation claims against defendant/appellee, James Harry. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On September 30, 2014, Mr. Dileo filed a "Petition for Defamation, Libel, and Invasion of Privacy Damages" against Mr. Harry. The claims arose out of a civil suit in the 40th Judicial District Court in which the parties were opposing counsel. In his petition, Mr. Dileo alleged that in the earlier case, in an opposition to exceptions, as well as in a pre-trial memorandum, Mr. Harry cited In re Dileo, 307 So.2d 362 (La. 1975), a suit involving Mr. Dileo, with the intention to invade Mr. Dileo's privacy and thus "making an unreasonable public disclosure of embarrassing private facts" about Mr. Dileo. Mr. Dileo also alleged that during a telephone pre-trial conference with Judge Madeline Jasmine and attorney Steven Reed, Mr. Harry accused Mr. Dileo of child molestation. Mr. Dileo alleged that this statement was defamatory per se.

         On November 25, 2014, in response to the petition, Mr. Harry filed "Exceptions of No Cause of Action and Motion for Sanctions." Mr. Harry argued that in his petition, Mr. Dileo failed to allege any of the elements of an invasion of privacy claim, and failed to allege all of the elements of a defamation claim. Additionally, he argued that the trial court is not authorized to regulate the practice of law and thus lacked jurisdiction over these claims. On January 12, 2015, the trial court conducted a hearing on the exceptions and took the matter under advisement. In a written judgment with extensive reasons rendered on May 26, 2015, the trial court denied Mr. Harry's exception regarding the unauthorized regulation of the practice of law, granted his exception of no cause of action regarding the invasion of privacy claim, denied his exception of no cause of action regarding the defamation claim, and denied his motion for sanctions.[1]

         A bench trial on the merits of the remaining defamation claim was held on January 12, 2017. Mr. Dileo called Mr. Harry and himself as witnesses. Mr. Harry testified that he did participate in a telephone conference with Judge Jasmine on October 17, 2013 regarding the selection of a trial date. He testified that he did not say during the telephone conference that Mr. Dileo was a child molester or had molested anyone, but rather that he was looking for evidence of child molestation, if it existed. He testified that the purpose behind mentioning child molestation was to show the court that the case was not ready for trial, as additional discovery was necessary. Mr. Dileo testified that during the telephone conference in question, Mr. Harry told Judge Jasmine, "I believe we can even prove that he molested his four-year-old daughter." He testified that at no time during the conference did Mr. Harry say that he needed more time to prove this.

         Following this testimony, Mr. Dileo rested his case. Mr. Harry then moved for a "directed verdict." In support of his motion, Mr. Harry argued that those persons present on the telephone conference did not testify, nor were they subpoenaed to testify at the trial, and thus there is a presumption that had they testified, they would have testified that Mr. Dileo was not telling the truth. Mr. Harry further argued that Mr. Dileo did not carry his burden of proof to show more likely than not that Mr. Harry made the alleged statement.

         After hearing the parties' arguments, the trial court granted the involuntary dismissal of Mr. Dileo's defamation claim pursuant to La. C.C.P. art. 1672(B).[2] In its written reasons for judgment dated January 13, 2017, the trial court found that the evidence presented by Mr. Dileo was uncorroborated and insufficient to satisfy his burden of proof. The trial court found that it did not believe that Mr. Harry had made a defamatory per se statement about Mr. Dileo, either expressly or implicitly. According to the trial court, the testimony did not preponderate in favor of either party, and neither party introduced any corroborating evidence to sway the trier of fact. Thus, the trial court found that Mr. Dileo did not "satisfy] his preponderance of the evidence burden of proof." This appeal followed.

         On appeal, Mr. Dileo asserts the following assignments of error, to-wit:

1. The trial court erred as a matter of law when it granted Mr. Harry's exception of no cause of action as to the invasion of privacy claim.
2. The trial court erred when it found that Mr. Harry's statement about child molestation did not rise to the level of defamation per se when the trial court and this Court found no privilege, qualified or otherwise, existed in a pre-trial conference.
3. The trial court erred in giving the same evidentiary weight to Mr. Harry's testimony when he presented no evidence whatsoever that he had a reasonable belief of his "defamatory per se accusations against [Mr.] Dileo."
4. The trial court erred when it denied introduction of Mr. Harry's July 15, 2014 letter to the Office of Disciplinary Counsel ("ODC") concerning his molestation accusation, as well as other defamatory accusations, since Mr. Harry waived any privilege he may have had by introducing into evidence Mr. Dileo's first ODC complaint, as well as by filing his reconventional demand for defamation against Mr. Dileo for Mr. Dileo's first ODC complaint.

         ASSIGNMENTS OF ERROR [3]

         Invasion ...


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