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KARLTON KIRKSEY VERSUS THE NEW ORLEANS JAZZ & HERITAGE FOUNDATION, INC. & ABC INSURANCE COMPANY

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NO. 2012-CA-1351 COURT OF APPEAL

* FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-10409, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Chief Judge James F. McKay, III, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins) Jerome J. Pellerin Attorney at Law 9024 Belfast Street New Orleans, LA 70118 COUNSEL FOR PLAINTIFF/APPELLANT Randall Alan Smith J. Geoffrey Ormsby Sara E. Porter SMITH & FAWER, L.L.C. 201 St. Charles Avenue Suite 3702 New Orleans, LA 70170 COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED FEBRUARY 27, 2013

This appeal is taken from a judgment granting a Special Motion to Strike and a Peremptory Exception of No Cause of Action in favor of the New Orleans Jazz & Heritage Foundation, Inc. (hereinafter "Foundation"). For the following reasons, we affirm. This matter has been before this Court previously wherein this Court reversed a judgment finding Kirksey personally liable for amounts owed to the Foundation, but affirmed the remainder of the judgment finding Kirksey Enterprises, Inc., liable for monies owed to the Foundation. New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433 (La.App. 4 Cir. 5/26/10, 40 So.3d 394, writ denied 10-1475 (La. 10/1/10), 45 So.3d 1100. Following rendition of the above opinion, the New Orleans Jazz & Heritage Foundation, Inc., filed a petition to enforce the judgment. Kirksey filed an Exception of Res Judicata, which was maintained by the trial court, but reversed by this Court. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 12-

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202 (La.App. 4 Cir. 11/30/12), 104 So.3d 714. An application for rehearing was denied, and no writ was taken to the Supreme Court. The instant lawsuit was filed by Kirksey in September 2011, alleging that the Foundation was liable to him for defamation, false light invasion of privacy, and tortious attempt to collect a disputed debt. The basis of the allegations is that the Foundation pleaded in the initial lawsuit that Kirksey misappropriated funds which were owed to the Foundation. Kirksey further alleges that the Foundation published these defamatory accusations to its board members, and released the information to the Times-Picayune for publication. Kirksey argues that because this Court did not find that funds were misappropriated, either by him personally or by his closely-held corporation, the allegations made by the Foundation were malicious, false and defamatory. In response to the petition, the Foundation filed a Special Motion to Strike pursuant to La. Code Civ. Proc. art. 971 and an Exception of No Cause of Action. The trial court granted both the motion and exception. Further, upon granting the Special Motion to Strike, the trial court ordered the Foundation to file a Rule to Show Cause to tax reasonable attorney fees and costs in bringing the motion. Following a hearing on the Foundation's motion to tax costs, the trial court granted the motion and awarded the Foundation $7,903.09 in attorney fees, plus interest. Kirksey has appealed both judgments.

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DISCUSSION: The special motion to strike and exception of no cause of action are inextricably linked, i.e., once the trial court granted the motion to strike, the causes of action alleged by Kirksey ceased to exist making it impossible for Kirksey to establish a likelihood of success on the merits of any of his claims. Nonetheless, we will discuss the motion and exception separately. A. Special Motion to Strike: Louisiana Code of Civil Procedure art. 971 provides in 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 the liability or defense is based. (3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding. B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs. *** F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise: (1) "Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:

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(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law. (b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law. (c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. Because the grant of a special motion to strike involves a question of law, an appellate court conducts a de novo review. Alexander v. Centanni, 11-0783, p. 4 (La.App. 4 Cir. 11/16/11), 80 So.3d 590, 592. The Louisiana legislature declared it to be in the best interest of the public "to encourage continued participation in matters of public significance." Thinkstream, Inc. v. Rubin, 06-1595 (La.App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100. The legislature intended the special motion to strike to be utilized in screening out "meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press." Melius v. Keiffer, 07-0189, p. 2 (La.App. 4 Cir. 4/12/08), 980 So.2d 167, 170, citing Lee v. Pennington, 02-0381, p. 4 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041. The courts have determined that La. Code Civ. Proc. art. 971 should be construed broadly to satisfy the intent of the legislature. Darden v. Smith, 031144 (La.App. 3 Cir. 6/30/04), 879 So.2d 390, 396; Davis v. Benton, 03-0851 (La.App. 1 Cir. 2/23/04), 874 So.2d 185, 190.

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The burden of proof initially lies with the party bringing the motion to strike to prove that "the cause of action arises from an act in the exercise of his right of free speech regarding a public issue." Melius, 07-0189, p. 3, 980 So.2d at 171, citing Aymond v. Dupree, 05-1248, p. 7 (La.App. 3 Cir. 4/12/06), 928 So.2d 721, 727. Once the mover meets his burden, the plaintiff must demonstrate a probability of success on the claim. Id. The trial court must examine the pleadings and supporting and opposing affidavits to determine whether the plaintiff has met his burden. La. Code Civ. Proc. art. 971 A(2). In his petition, Kirksey claimed he was defamed on three specific occasions: 1) when he was accused in the underlying lawsuit of misappropriating, concealing, converting and/or conspiring to misappropriate certain rebates due the Foundation from ticket sales, and for breaching a fiduciary duty; 2) when certain Foundation board members informed the Times-Picayune that the Foundation was suing Kirksey for the above torts; and, 3) when certain Foundation board members informed other board members about the alleged misappropriation of funds. The Foundation filed the motion to strike asserting that it was exercising its right to free speech in connection with a public issue. La. Code Civ. Proc. art. 971 A(1). The Foundation argues that it met its burden by showing that the acts, which form the basis of Kirksey's cause of action, are the allegations contained the Foundation's petition. The Foundation further argues that it only need prove that its actions involved the type of public issue that La. Code Civ. Proc. art. 971 is intended to protect. We agree. The filing of the lawsuit against Kirksey and the reporting of that fact are acts "in furtherance of a person's right to petition or free speech," which includes "any written or oral statement or writing made in connection with an issue under
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review by a legislative, executive or judicial body or any other official body authorized by law." La. Code Civ. Proc. art. 971 F(1)(b). Kirksey argues that the lawsuit filed by the Foundation was not of public concern because the dispute was between two private entities. This argument fails. In Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690 (1983), the United States Supreme Court described speech on matters of public concern as speech "relating to any matter of political, social, or other concern to the community." To determine if speech is a matter of public concern, the court must determine the content, form, and context of a given statement, as revealed by the entire record. Id., 461 U.S. at 147-48, 103 S.Ct. at 1690. We find, as did the trial court, that the underlying lawsuit involves a matter of public concern as the Jazz Festival is one of the premier entertainment events each year in the City of New Orleans, contributing millions of dollars each year to the City's economy. Contra, Lyons v. Knight, 10-1470 (La.App. 3d Cir. 5/11/11), 65 So.3d 257 (case involving a business relationship between a private citizen and a private business corporation). Once the Foundation met its burden, the burden shifted to Kirksey to establish the probability of success on each and every element of his defamation claim and false light invasion of privacy claim. La. Code Civ. Proc. art. 971 A(3). Through its exception of no cause of action, the Foundation confirmed that Kirksey cannot establish a likelihood of success on the merits of any of his claims. The trial court examined "the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." La. Code Civ. Proc. art. 971 A(2).

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B. Exception of No Cause of Action: The exception of no cause of action serves to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged. Jenkins v. Gray Ins. Co., 11-0035, p. 3 (La.App. 4 Cir. 7/6/11), 67 So.3d 707, 709. The pertinent inquiry is whether, in a light most favorable to the plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief. La.Code Civ. Proc. arts. 927, 931; NOLA 180 v. Harrah's Operating Co., Inc., 12-0072, p. 3 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, 888, citing Mobile

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