NICHOLAS J. SCHITTONE
BROOKE R. STOMA AND CANDYCE PERRET
Review from the 15th Judicial District Court  In and for the
Parish of Lafayette State of Louisiana No. 2017-2405
Honorable Marilyn C. Castle, Judge Presiding
K. Breaud Timothy W. Basden Lafayette, Louisiana Attorneys
for Defendants/Relators Brooke R. Stoma, Candyce Perret, and
Perret for Judge Campaign, LLC
Kirk Piccione Brenda S. Piccione Lafayette, Louisiana
Attorneys for Plaintiff/Respondent Nicholas J. Schittone
BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.
writ application, defendants/relators, Brooke R. Stoma
("Stoma"), Candyce Perret, and Perret for Judge
Campaign, LLC (collectively "Perret"), challenge
the ruling of the trial court which denied defendants'
special motion to strike pursuant to La. Code Civ. P. art.
971. For the following reasons, we reverse the ruling of the
trial court and remand for further proceedings.
AND PROCEDURAL HISTORY
Nicholas J. Schittone ("Schittone"), filed this
action for defamation asserting that Stoma and Perret caused
to be published, on television and radio, a commercial
advertisement supporting the candidacy of Candyce Perret in a
judicial election. Schittone alleged that the advertisements
contained defamatory statements about him, accusing him of
being abusive toward his children and his former spouse,
Stoma. Although Schittone acknowledged that his name was not
used in the commercial, he alleged the content of the
commercial made it obvious to his family, friends, and
acquaintances that he was the subject of these accusations.
According to the petition, the commercial made certain
allegations as to the handling of the divorce and child
custody case between Schittone and Stoma by Susan Theall
("Theall"), the district court judge presiding
therein. Schittone asserted a cause of action for defamation,
alleging the statements and publications made by Stoma and
Perret were false and done with malice and full knowledge of
Defendants filed a special motion to strike pursuant
to La. Code Civ. P. art. 971 seeking dismissal of
Schittone's action, asserting this action was properly
the subject of such a motion and that Schittone could not
meet his burden of proving a probability of success on his,
alleged claims. Schittone filed a memorandum in opposition to
the special motion to strike, attaching thereto a number of
affidavits. He also filed an evidentiary motion to strike
internet posts and articles submitted by defendants in
support of their special motion to strike. At the hearing on
this matter, the trial court instructed the parties to focus
on the threshold issue of whether the matter involved an
issue of public interest. With regard to the evidentiary
matters before the court, the trial court sustained
Schittone's objection to the internet posts and articles,
and excluded those documents from evidence. Schittone sought
to introduce into evidence the affidavits attached to his
memorandum in opposition to the special motion to strike, at
which time counsel for defendants objected, referencing an
evidentiary motion to strike he had filed prior to the
hearing. The trial court failed to render a ruling
on Schittone's motion to introduce the affidavits into
evidence and defendants' evidentiary objections, although
the affidavits were not admitted into evidence.
taking this matter under advisement, the trial court denied
defendants' special motion to strike by judgment dated
July 20, 2017. The trial court found that Schittone was not a
candidate for office and was not connected to either
candidate and that Stoma's dispute with Schittone over
child custody/divorce issues was a private dispute between
private parties, not a matter of public interest or concern.
Accordingly, the trial court found that defendants failed to
establish that Schittone's cause of action arose from an
act in the exercise of their right of free speech regarding a
public issue, and dismissal pursuant to La. Code Civ. P. art.
971 was unavailable. The judgment awarded attorneys' fees
to Schittone, as mandated by La. Code Civ. P. art. 971, with
said attorney fee award to be cast in a supplemental
judgment. A judgment casting defendants with attorney fees in
the amount of $9, 475.00 was signed on August 22, 2017.
assert that the trial court erred in: (1) holding that this
action did not arise from any act in furtherance of the right
of petition or free speech in connection with a public issue
and that the provisions of La. Code Civ. P. art. 971 did not
apply; (2) denying the special motion to strike and failing
to dismiss the claims asserted against defendants; (3) not
awarding attorneys' fees to Stoma and Perret; and (4)
awarding attorneys' fees to Schittone.
Code of Civil Procedure article 971 provides, in pertinent
A. (1) A cause of action against a person arising from any
act of that person in furtherance of the person's right
of petition or free speech under the United States or
Louisiana Constitution in connection with a public issue
shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established a
probability of success on the claim.
(2) In making its determination, the court shall consider the
pleadings and supporting and opposing affidavits stating the
facts upon which ...