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Barber v. Willis Communications, Inc.

Court of Appeals of Louisiana, First Circuit

December 29, 2017

JOSHUA SHANE BARBER
v.
WILLIS COMMUNICATIONS, INC.

         On Appeal from the 22nd Judicial District Court, Parish of Washington, State of Louisiana Trial Court No. 108283, The Honorable William J. Knight, Judge Presiding.

          Thomas J. Hogan, Jr. Hammond, Louisiana, Attorney for Plaintiff/ Appellant, Joshua Shane Barber.

          Darrin O'Connor Covington, Louisiana, Attorney for Defendant/ Appellee, Willis Communications, Inc.

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          CRAIN, J.

         Joshua Shane Barber appeals a summary judgment dismissing his defamation suit against his former employer, Willis Communications, Inc. We affirm.

         FACTS

         Barber instituted this defamation action against Willis, alleging he suffered injuries when Willis, his former employer, accused him of theft in statements published to the local police department, his former co-workers, the Louisiana Workforce Commission (LWC), and others. Barber further alleges the statements were made with a reckless disregard for the truth and without a reasonable basis for believing them to be true. Barber's petition specifically references statements in a separation notice provided to him by Willis and forwarded to the LWC, which stated Barber "was witnessed crumpling up money from his drawer and putting it in his pocket." The notice continued, "Upon inspection the following morning, there was money missing."

         The trial court granted Willis' motion for summary judgment, finding no evidence of any unprivileged communication published to a third party, and dismissed Barber's suit. Barber appeals.

         DISCUSSION

         Appellate courts review summary judgments de novo using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669, 686. That is, a motion for summary judgment shall be granted if, after an opportunity for discovery, the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3).

         The burden of proof rests with the mover. La. Code Civ. Pro. art. 966D(1). If the mover will bear the burden of proof at trial on the issue before the court in the motion, the burden of showing there is no genuine issue of material fact remains with the mover. See La. Code Civ. Pro. art. 966D(1); Sims v. Maison Insurance Company, 16-1661 (La App. 1 Cir. 9/15/17), __So. 3d__, (2017WL4081531). After the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Jones v. Estate of Santiago, 03-1424 (La. 4/14/04), 870 So.2d 1002, 1006. However, if the mover will not bear the burden of proof at trial, the mover need not negate all essential elements of the adverse party's claim but must point out that there is an absence of factual support for one or more elements essential to the claim. La. Code Civ. Pro. art. 966D(1). Thereafter, the burden shifts to the non-moving party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.[1] La. Code Civ. Pro. art. 966D(2). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 16-0770 (La.App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied, 17-0873 (La. 9/29/17), 227 So.3d 288.

         Defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 139. The essential elements required to prevail on a defamation claim are (1) defamatory words, (2) publication, (3) falsity, (4) malice, and (5) resulting injury. Starr v. Boudreaux, 07-0652 (La.App. 1 Cir. 12/21/07), 978 So.2d 384, 389. Defamation actions raise issues related to the constitutionally protected rights of free speech and freedom of the press, and summary adjudication is recognized as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious defamation actions that threaten those rights. See Kennedy, 935 So.2d at 686.

         In its motion for summary judgment, Willis asserts that Barber can point to no evidence that Willis published defamatory statements about him. The evidence submitted on the motion for summary judgment established that on the morning Barber's employment was terminated, a manager met Barber in the parking lot and handed him the termination notice, which accused him of theft. In his deposition, Barber testified that no one else was present or overheard the conversation between them. Barber further testified that he had no knowledge of the Willis employee who signed the termination notice relaying information regarding the alleged theft to anyone else, including other employees or the police. Barber also indicated that he was not contacted by the police about the alleged theft after his termination. However, Barber contends that Willis published ...


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