186 So. 3d 667
La. Ct. App.2013Background
- Mr. Elliott represented legatees who obtained a $310,848.97 money judgment against Herbert Witty in Pointe Coupee Parish, later affirmed and final.
- Less than a month after that judgment, Witty and his daughter Dana Gibbs executed a Michigan trust giving Gibbs broad authority as trustee; Witty transferred a $100,000 Louisiana legacy into the trust.
- A death occurred at Gibbs’s Michigan property; Gibbs faced criminal tampering charges and a wrongful-death civil suit in Michigan.
- Elliott, asserting concern about judgment evasion, filed a conservatory motion in the Louisiana succession and submitted an affidavit and the trust instrument to Michigan counsel alleging the trust evidenced an intent to shield assets.
- Gibbs sued Elliott in Louisiana for defamation based on statements in the affidavit and the attachment motion; Elliott moved to strike under La. C.C.P. art. 971. The trial court granted the special motion to strike and summary judgment; Gibbs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 971 applies | Gibbs: statements concern a private family matter, not a public issue | Elliott: statements were made in connection with judicial proceedings and public interest (judgment collection) | Article 971 applies because statements were made before/connected to judicial proceedings |
| Whether Gibbs established probability of success on defamation claim | Gibbs: Elliott’s allegations that she aided fraud/evaded creditors were false and defamatory | Elliott: statements were based on publicly available facts and reasonable inference; privileged petitioning activity | Gibbs failed to prove probability of success because malice was not shown |
| Whether Elliott acted with malice (required for defamation) | Gibbs: statements were accusatory and without factual basis, showing malice | Elliott: had reasonable grounds (timing of trust, his client’s judgment, Gibbs’s role and Michigan proceedings) | No malice—Elliott had reasonable belief in truth of statements |
| Whether dismissal with prejudice was appropriate under art. 971 | Gibbs: art. 971 should not bar her claim on these facts | Elliott: statute designed to early-dismiss meritless suits that chill petitioning | Dismissal affirmed; trial court properly granted special motion to strike |
Key Cases Cited
- Thinkstream, Inc. v. Rubin, 971 So.2d 1092 (La. App. 1 Cir.) (explains burden-shifting and purpose of La. C.C.P. art. 971)
- Lamz v. Wells, 938 So.2d 792 (La. App. 1 Cir.) (appellate review of legal questions — no special deference)
- Starr v. Boudreaux, 978 So.2d 384 (La. App. 1 Cir.) (standard of review for motions to strike under art. 971)