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Butler v. Sandberg

Court of Appeals of Louisiana, First Circuit

October 23, 2019

Tyrone Butler
v.
Reverand Richard Sandberg and the Moral Alliance of St. Helena

          Appealed from the Twenty-First Judicial District Court In and for the Parish of St. Helena • State of Louisiana Docket Number 22, 103 • Division D The Honorable M. Douglas Hughes, Judge Presiding

          Robert J. Carter Greensburg, Louisiana Michael L. Thiel DeVonna Ponthieu Hammond, Louisiana ATTORNEYS FOR APPELLANT PLAINTIFF-Tyrone Butler

          Christopher T. Baker Bossier City, Louisiana Horatio G. Mihet, pro hac vice Daniel J. Schmid, pro hac vice Orlando, Florida Stephen M. Crampton, pro hac vice Mandi D. Campbell, pro hac vice Lynchburg, Virginia ATTORNEYS FOR APPELLEES DEFENDANTS- Rev. Richard Sandberg and the Moral Alliance of St. Helena

          Before: Welch, Chutz, and Lanier, JJ.

          WELCH, J.

         Plaintiff appeals the district court's judgment granting attorney's fees and costs to the prevailing Defendants on a special motion to strike. For the reasons that follow, we vacate and remand.

         FACTS AND PROCEDURAL HISTORY

         This appeal arises from a defamation lawsuit. On July 31, 2013, employing the counsel of Michael Thiel and DeVonna Ponthieu, Plaintiff Tyrone Butler sued Defendants, Reverend Richard Sandberg and The Moral Alliance of St. Helena. The petition alleged that Rev. Sandberg called Mr. Butler a "schoolyard bully" at a meeting opposing a police jury resolution that would have exempted Mr. Butler's business from a law restricting sexually-oriented businesses in the parish.

         On September 23, 2013, Defendants filed an answer and affirmative defenses, and simultaneously filed a special motion to strike under La. C.C.P. art. 971.[1] The district court set Defendants' special motion to strike for hearing on January 24, 2014. Mr. Butler did not file a timely response, nor did he appear at the January 24, 2014 hearing. The district court granted Defendants' special motion to strike in an order signed on February 5, 2014.

         On February 5, 2014, Mr. Butler filed a motion to reinstate his petition for damages, blaming his counsel's absence at the January 24, 2014 hearing on bad weather. Therein, Mr. Butler's counsel, Ms. Ponthieu, alleged that she informed the district court of her absence, but that the message was not communicated to the district court judge. On February 10, 2014, Defendants filed an opposition to Mr. Butler's motion to reinstate the petition for damages. Thereafter, Mr. Butler filed an opposition to Defendants' special motion to strike on April 14, 2014. The district court struck Mr. Butler's opposition to Defendants' special motion to strike as "grossly untimely" and reaffirmed its grant of Defendants' special motion to strike.

         On September 22, 2016, Defendants filed a motion for attorney's fees and costs pursuant to La. C.C.P. art. 971(B).[2] On February 9, 2017, Mr. Butler's counsel, Michael Thiel, was suspended from the practice of law. On May 19, 2017, Defendants moved to set a hearing on their motion for attorney's fees and costs. On May 23, 2017, the district court granted Defendants' motion and set a hearing on Defendants' motion for attorney's fees and costs for August 25, 2017.

         Neither Mr. Butler nor his other attorney, Ms. Ponthieu, appeared at the hearing on August 25, 2017. The district court granted Defendants' motion for attorney's fees and costs and issued a final judgement that same day, ordering Mr. Butler to pay Defendants $55, 551.85 in attorney's fees and costs. On September 13, 2017, Mr. Butler filed a motion for a new trial, alleging lack of proper citation and service of notice of the August 25, 2017 hearing. The district court denied Mr. Butler's motion for new trial as untimely. Mr. Butler has devolutively appealed the August 25, 2017 judgment granting Defendants motion for attorney's fees and costs.

         LAW AND DISCUSSION

         The issue before this court is whether citation and service of the May 23, 2017 order setting the August 25, 2017 hearing on Defendants' motion for attorney's fees and costs was made in accordance with state law. In his first assignment of error, Mr. Butler contends the district court erred in granting Defendants' motion for attorney's fees and costs, arguing a ...


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