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Schittone v. Stoma

Court of Appeals of Louisiana, First Circuit

May 2, 2018

NICHOLAS J. SCHITTONE
v.
BROOKE R. STOMA AND CANDYCE PERRET

          On Review from the 15th Judicial District Court [1] In and for the Parish of Lafayette State of Louisiana No. 2017-2405 Honorable Marilyn C. Castle, Judge Presiding

          Alan K. Breaud Timothy W. Basden Lafayette, Louisiana Attorneys for Defendants/Relators Brooke R. Stoma, Candyce Perret, and Perret for Judge Campaign, LLC

          J. Kirk Piccione Brenda S. Piccione Lafayette, Louisiana Attorneys for Plaintiff/Respondent Nicholas J. Schittone

          BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.

          PER CURIAM.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff, 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.[2] 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 the falsehood.

          Defendants[3] 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.[4] 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.

         After 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.

         ASSIGNMENTS OF ERROR

         Defendants 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.

         LAW AND DISCUSSION

         Louisiana Code of Civil Procedure article 971 provides, in pertinent part:

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 ...

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