text:
    STATE of Louisiana in the Interest of C.F. & M.F.
    No. 05-1272.
    Court of Appeal of Louisiana, Third Circuit.
    April 12, 2006.

      Michael Harson, District Attorney, 15th Judicial District, Michelle Breaux, Lafayette, LA, for Appellee, State of Louisiana.
    Dan K. Kennison, Lafayette, LA, for Appellant, Barbee Falcouner Laine.
    Allyson Edwards, Lafayette, LA, for C.F. and M.F.
    Vivian Neumann Lafayette, LA, for Defendant, Jerome Latiolais.
    William Vidrine, Vidrine & Vidrine, L.L.C., Lafayette, LA, for Appellant, Bar-bee Falcouner Laine.
    Sarah Comeaux, CASA of Acadiana Advocate Coordinator, Lafayette, LA, for Karen Kulberth, CASA Volunteer.
    Schewanna Simmons, Lafayette, LA, for Department of Social Services.
    Court composed of SYLVIA R. COOKS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   COOKS, Judge.

|Jn this child custody dispute, the mother appeals the trial court’s judgment granting custody of her minor son, M.F., to the State of Louisiana, Office of Child Services (OCS).

FACTS AND PROCEDURAL HISTORY

On December 28, 2003, John Burke found C.F., a nine-year-old boy (born May 26, 1994), alone without adult supervision. Burke, who was acquainted with C.F.’s mother, noted C.F. had a black eye and scratches around his neck. Burke called the police, who were told by C.F. that he had been alone for 8 to 10 hours. He also told police he had the black eye because he had been punched in the face by his mother. The police arrested the mother, who was charged with child desertion and second degree battery. She was convicted and placed on probation.

On December 29, 2003, C.F. and his brother M.F. (born July 3, 1997), were adjudicated Children in Need of Care and were placed in the custody of OCS. C.F. and M.F. have different biological fathers, and M.F. resided with his biological father when the incident on December 28, 2003 occurred.

On January 5, 2004, the court issued an Order of Continuing Custody with OCS. It found that C.F. and M.F. were Children in Need of Care. It further found OCS had made reasonable efforts to prevent the children’s removal from the home but could not, “due to the nature of the situation and the mother’s inability to provide a safe and adequate environment for the minor children and due to her chronic and longstanding substance abuse history and incarceration preventative efforts could not be made at this time.” OCS developed a case plan for the mother with an eventual goal of reunification. OCS assumed legal custody of M.F., who was placed into the physical custody of his biological father, with visitation set for every two weeks with | ¡¡the mother. C.F. was placed in the custody of his biological father and stepmother, who resided in Oklahoma.

Following a review hearing held on June 21, 2004, the court ordered that the children remain in the custody of the State for six more months noting “inadequate progress has been made toward alleviating or mitigating the causes necessitating the children’s continued placement in foster care and the reunification is not possible at this time.” Subsequently, M.F.’s father voluntarily relinquished physical custody, and M.F. was placed in foster care. At that time, C.F. remained in Oklahoma with his father and stepmother.

On November 30, 2004, the mother filed a Motion and Order for Return of Child to the Biological Mother seeking custody of M.F. and termination of OCS’s involvement. A hearing on the motion was set for December 22, 2004. At the conclusion of the hearing, the parties stipulated M.F. would remain in the custody of the State for three additional months, at which time another review hearing would be held. The parties also stipulated that during this period both parents would be allowed to visit with M.F. C.F. remained with his father and stepmother in Oklahoma.

On January 18, 2005, a hearing was held to address certain concerns involving M.F., stemming from an “incident” that occurred with the mother. There is nothing in the record stating what this “incident” involved. By agreement of the parties, the trial court conducted a permanent placement hearing on that date. Legal and physical custody of M.F. was returned to his biological father with reasonable visitation rights in favor of the mother. The trial court made the following comments at the hearing:

And let me just add one thing. And I know [the mother] was trying to get custody. And I read in detail the progress that she did, and it was excellent. I read all the progress notes, everything in there. And, of course, all she has— she had custody and now she has — an incident 1 Jiappened and now she’ll have visitation. I’ll ask that she not allow the loss of custody to deter her from continuing the work she’s done because it may be in the future that she’ll need to be called upon as a resource possibly for custody. Because these — this child is not an easy child to work with, and it may be in the future that we’ll have to change custody again. I don’t know. But keep your act together so that you can remain a possible resource for the child.

Judgment was signed on January 28, 2005. Within days after the January 18 hearing, the father again decided he did not want to have legal and physical custody of M.F. and informed the mother of this change of heart. In response, the mother filed a petition before a different trial judge in Family Court seeking custody of M.F., noting the father’s desire to return custody to her. A joint stipulation was signed by the mother and father stating the best interest of M.F. would be served by the mother assuming legal and physical custody. Judgment was signed in Family Court by Judge Keaty on January 21, 2005, granting custody to the mother with reasonable visitation to the father. When OCS received information about the change in custody, it sent a letter to the trial court on February 11, 2005, noting the change in custody and stating “it appears this matter was handled without a hearing and there is no indication that the juvenile hearing held on January 18, 2005 was referenced.”

On March 22, 2005, the parties returned for a court hearing initiated by “some strange” turn of events involving M.F.’s custody. Summarizing the events involved after custody of M.F. was granted to the father on January 18, 2005, the court stated:

The Court gave custody of [M.F.] to [the father]. And then [the father] and [the mother], who had been — whose custody had been removed, a couple of days after we granted custody, decided— three (3) days after, decided to go to Judge Keaty and get Judge Keaty to sign an order, without informing Judge Keaty of the fact that there had been the Child in Need of Care proceedings, extensive Child in Need of Care proceedings. She signed an order giving custody back to the person that custody was removed from in the first place. And we set this to get this straight.

The trial court was undoubtedly upset by what it perceived to be a “back-door” |4attempt by the mother and/or her attorney to gain custody of M.F. The trial court initially stated he was rescinding both its order granting custody to the father and Judge Keaty’s order granting custody to the mother, and ordering the State to take custody of M.F. At that point, OCS’s representative requested that the judge “court-order family supervision and leave custody with [the mother] ... because I think there was some indication that — she was making some good choices for the child.” The trial court then noted because the mother had not appeared at this hearing it was issuing an order for the mother’s arrest. The mother’s attorney explained that the mother was not present because she was at a hearing being held in juvenile court in Oklahoma pertaining to C.F. The mother’s attorney explained his understanding of the confusion that led to the mother’s non-appearance at the hearing:

Your Honor, I’d just like to posit for the Court that what it appears happened is on December 22nd [2004] she was — she was served for a hearing, obviously, for today. And then what it appeared to everybody, including me at the time, was that the next hearing in January concluded all matters with child protection. And so at that point, we didn’t feel that there were any more — that there were any more court dates set.

The mother’s attorney stated that he did not find out about the March 22, 2005 hearing until the day before it was scheduled to convene. He immediately called the Clerk of Court to find out if the matter was still set on the docket. Once the Clerk confirmed that the matter was scheduled, the attorney stated he called the mother immediately to advise her of the fixing. However, the mother was already in Oklahoma to attend a hearing involving C.F. A contentious exchange then occurred between the trial court and the mother’s attorney:

THE COURT: Because I think the openness and honesty coming from you and your client has not happened in this court.
MR. KENNISON: Well, I’m sorry the Court feels that way.
THE COURT: Even though I had a very favorable impression of the work she had done. I read the reports. In fact, I complimented her when | BI made the ruling. I wasn’t ready to give her custody, but I guess [the father] was. And there was some deception in going to Judge Keaty for this order without informing Judge Keaty of all of the circumstances surrounding that.
MR. KENNISON: Your honor, I’m not going to make a response to that at this time.
THE COURT: I don’t think you should.
MR. KENNISON: I’d just ask the Court not to put her in jail, but simply to ask her to — to order her to come in and report why she was someplace else, so that the Court could have the facts before — I think it would just traumatize the child, Your Honor. That’s what I would put before the court. It would traumatize the child to be put back in custody even for a day or two. I think it — -I think what ended up — what ended up happening has not been damaging to the child, but to do—
THE COURT: I don’t know that. I don’t know that.
MR. KENNISON: Well, maybe if the Court would just—
THE COURT: Wait. If I’d have thought that’s where this child needed to be, I’d have given her custody.
MR. KENNISON: I understand.
THE COURT: Judge Keaty didn’t know anything about this case. But, yet, y’all chose to go to Judge Keaty and get an order giving her custody, without informing her that this is a person that custody had been removed from and that three (3) days before I had chosen not to give her custody. You know, that was a lie. I mean, we expect more than that. I expect more than that from anybody, especially an attorney who appear before this Court. I mean, I expect you to tell me the things that you don’t want me to hear, if it’s the truth. And to intentionally withhold the truth from a judge, I think is absolutely reprehensible. And I think that occurred. And now when we try to have a — to get this thing straightened out, she decides it’s more important to go to Oklahoma. MR. KENNISON: And that’s the point, Your Honor. She did not decide. She was already in Oklahoma.
THE COURT: She went. She went to Oklahoma when she had an order to be here.
MR. KENNISON: I’d just posit that it’s understandable confusion and—
THE COURT: It seems like all that happens in this case is confusion, doesn’t it?
|fiMR. KENNISON: But I understand the Court is angry with me, but I would prefer that the Court would be angry with me—
THE COURT: Not just you.
MR. KENNISON;. — than hurt the client or the child.
MS. NEUMANN: And, Judge, for the record, I had represented the father, and I had absolutely no idea if this was a plan because I was never told anything to that effect.
THE COURT: Uh-huh.
MR. KENNISON: And there was no plan. I mean, he took action three (3) days afterwards, and she asked me to draw up papers to take care of it. And it’s my understanding, and my recollection, that in the courtroom on the record, this judge said that if we were not happy with the visitation or the arrangements made, that we would have to go to a different court. We were going to be in another court at that time. And I did not intentionally conceal anything from you, Judge.
THE COURT: I read the transcript. Okay?
MR. KENNISON: I have not, and I would like to ask for it.
THE COURT: I have.
MR. KENNISON: Can I have it? I’m asking for it on the record.
THE COURT: Uh-huh. If you pay for it.
MR. KENNISON: I’ve offered to pay for it before.
OCS REPRESENTATIVE: I think when your secretary contacted us, you wanted all the parties to be a part of this. And I think a big part of this is [the father] is not here. I understand from CASA that they had some involvement after the last hearing where he was quite inappropriate, he didn’t want to help set up the visitation. And, you know, they did call the school and confirm that [the mother] was choosing to stay here with the child to keep him in school so that he wouldn’t have to change schools, even though she really wanted to be in Houston to get out of the area. So it did seem. In some way, an inkling of, like, trying to put her child’s needs before her own. So I was impressed with that.
THE COURT: Well, I was impressed— Let me tell you what, I was impressed with .the work she had done. And I said that. But I’m totally unimpressed with what has happened since I gave custody to [the father],
|7DEPUTY CLERK: Judge, he was also served to be here today.
THE COURT: What?
DEPUTY CLERK: He was also served to be here today.
THE COURT: I want arrest warrants issued for [the father] and [the mother]. That’s it I’m not going to remove custody. But when she gets arrested, then we may have to. But she brought this on herself.
DEPUTY CLERK: You’re still rescinding custody on both parties, rescinding the order?
THE COURT: No. But we may have to eventually.

(Emphasis added).

Despite the fact that the attorney for the mother gingerly tried to remind the court of the January 18, 2005 hearing and the procedural facts which caused confusion for all the parties regarding the continued fixing of the March 22, 2005 hearing, and OCS recommendation that M.F. remain with the mother, the trial judge issued arrest warrants for the mother and father.

On April 26, 2005, another hearing involving M.F. was held. Again, there was significant confusion among the parties as to what this hearing concerned. OCS’s representative was not aware of the purpose of the hearing. The assistant district attorney stated it was her “understanding that this is basically somewhat of a review hearing ... to determine the status and— of the placement of [M.F.]” The court replied that it was “somewhat of a review.” At that point, the mother’s attorney stated | she was under the belief they were scheduled that day for a contempt hearing, and he was not prepared for a review hearing. The trial court then ordered OCS to assume custody of M.F. The relevant portion of the hearing went as follows:

MR. KENNISON: I’d like to discuss it with you instead. And besides that, Your Honor, I’d also like to urge that, as to the — as to the notices for having a contempt hearing today, I did receive that timely for preparation. As to any notice mailed or otherwise delivered by the Sheriff, of the hearing today on any kind of review, that was not received by this office, it was not served by the Sheriff, and, thus, we don’t have any notice of it adequate in time to prepare, which is what I wanted to explain to the Court. We don’t have — we don’t have time to prepare for a review hearing. We were preparing for a contempt hearing and we are ready to go forward with the contempt hearing.
THE COURT: Okay. Well, you understand that the order by Judge Keaty granting [the mother] custody is hereby revoked.
MR. KENNISON: Well, I haven’t seen that it is, but I—
THE COURT: I’m telling you it is,— MR. KENNISON: — -heard.
THE COURT: — okay?
MR. KENNISON: Then, I mean, we’re not — we’re not worried if the Court is then going to place the child back with [the father].
THE COURT: The child should be placed, at this time, back in the custody of the State.
MR. KENNISON: In the State?
THE COURT: Yes.
MR. KENNISON: Your Honor, at that point — at that point, what we’re urging is that if you’re taking action in this case, that you don’t have jurisdiction at this point.
THE COURT: Judge Keaty does.
MR. KENNISON: Well, I guess then we’d have to have a hearing with Judge Keaty and due process notice to have a hearing.
THE COURT: No. Where’s the child?
MR. KENNISON: I don’t know.
laTHE MOTHER: He’s in New—
THE COURT: The child is not in the State of Louisiana?
THE MOTHER: Yes. He’s in New Iberia.
THE COURT: I’ll order OCS to take custody of the child.
MR. KENNISON: Can we discuss what grounds is that on? Is there a new allegation.
THE COURT: I’m not going to enter into a discussion with you.
MR. KENNISON: Okay. So without a hearing — just to clarify, without a hearing, without any notice of a hearing, that you’re having OCS take custody because Judge Keaty has allegedly rescinded her order.
THE COURT: Uh-huh.

The trial court then stated Judge Keaty’s order granting the mother custody “is hereby revoked.” The court also ordered M.F. placed into the custody of OCS without taking any evidence and over the objection of the mother. A Judgment Modifying Disposition was signed by the trial court on June 8, 2005 reflecting the ruling in open court on April 26, 2005, ordering the transfer of custody to OCS. The judgment also stated that “[t]he Court further learned that Judge Keaty recalled and/or reversed said judgment, upon learning of the prior proceedings in this Court.” There is no copy of any revocation issued by Judge Keaty in the record. One week later, on June 15, 2005, the trial court signed a judgment stating its “[j]urisdietion over all custody matters involving the child [M.F.], remains in effect and is ongoing; and that the Judgment rendered in this Court on January 18th, 2005 in open Court and signed January 28, 2005 ... has no effect on that Jurisdiction.” This appeal followed. The mother asserts the trial court erred in granting custody of M.F. to OCS.

ANALYSIS

A trial court’s determination regarding child custody is to be afforded Imgreat deference and should not be disturbed absent a clear abuse of discretion. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365. Louisiana Civil Code Article 131 states that “the court shall award custody of a child in accordance with the best interest of the child.” Comment (a) to that article suggests this guideline is the “overriding test to be applied in all child custody determinations.”

The mother argues the trial court erred in not finding the best interest of M.F. mandated that she be awarded custody. The mother also argues she was denied due process at the hearing on April 26, 2005, following which the custody of M.F. was modified without the taking of any testimony or evidence. We pretermit ruling on the merits of the mother’s “best interest” argument because the hearings held on March 22, 2005 and April 26, 2005 were improper and the judgments flowing from them must be set aside. Title VI, Chapter 16 of the Louisiana Children’s Code governs cases where a child has been removed from a parent’s custody following an adjudication as a child in need of care. Of particular importance in the present case are the following articles:

Louisiana Children’s Code Article 701:

If at any point in child in need of care proceedings, the child is removed from his parents’ care and control and placed in the custody of the department, the provisions of this Chapter shall govern the subsequent review process until such time as the child achieves a permanent placement as defined in Article 603(15). Louisiana Children’s Code Article 603(15):
“Permanent placement” means:
(a) Return of the legal custody of a child to his parent(s).
(b) Placement of the child with adoptive parents pursuant to a final decree of adoption.
(c) Placement of the child with a legal guardian.
|_y(Emphasis added.)

At the January 18, 2005 hearing the trial court terminated OCS’s involvement with M.F. and returned custody to the biological father with reasonable visitation rights in favor of the mother. Judgment was signed on January 28, 2005, decreeing “custody of the minor child is granted to his father ...” The judgment further stated “this Disposition is the least restrictive disposition and permanent plan ...” The judgment was a permanent placement as defined in Article 603(15). Accordingly, the Child in Need of Care proceedings were concluded when M.F. was permanently placed with his father. Therefore, the trial court was divested of jurisdiction in this matter after the permanent placement of M.F.

A review of the record indicates the trial court was aware of the question of jurisdiction at the April 26, 2005 hearing. When questioned by the mother’s attorney as to whether it had jurisdiction, the trial court replied “Judge Keaty does.” Undoubtedly in response to the mother’s attorney’s concerns over jurisdiction, the trial court signed a judgment on June 15, 2005, stating its earlier judgment rendered on January 28, 2005 had no effect on its jurisdiction. The trial court did not possess the power to re-vest jurisdiction it clearly recognized it was divested of by the January 28, 2005 judgment. Further, we find nothing in the statutes or jurisprudence which allowed Judge Clause to rescind Judge Keaty’s civil custody order; and, therefore, to usurp her jurisdiction to continue a Child in Need of Care proceeding in which a permanent placement had been made and a final judgment had been rendered. Likewise, any revocation of Judge Keaty’s order granting custody to the mother in this Child in Need of Care proceeding was improper. Only Judge Keaty possessed the requisite jurisdiction to revoke her order in the separate civil proceeding within the delays provided by law. Although the trial judge states Judge Keaty did so at his ^request, there is no such order filed in the record before us.

We note there is a letter in the record from OCS, dated February 11, 2005, alerting the trial court of the proceedings before Judge Keaty. There is nothing in the letter asserting that M.F.’s immediate removal from the mother was necessary for his protection from further abuse or neglect as required by Title VI of the Louisiana Children’s Code, arts. 601, et seq., to reopen a Child in Need of Care proceeding and to vest new jurisdiction in the trial court to entertain the State’s application for protective orders. After reviewing the procedural facts presented, we are convinced the trial court did not have jurisdiction to adjudicate M.F.’s custody on April 26, 2005.

DECREE

For the foregoing reasons, the judgments of the trial court on June 8, 2005 and June 15, 2005 are reversed and set aside. It is ordered, adjudged, and decreed that the State of Louisiana, Office of Child Services is given ten days from receipt of this opinion to initiate Child in Need of Care proceedings anew if it deems such is warranted. If OCS chooses not to initiate Child in Need of Care proceedings within the time allowed, legal and physical custody shall be returned to the mother in accordance with this court’s judgment.

JUDGMENT OF TRIAL COURT REVERSED AND SET ASIDE.

      . We find the trial court’s anger over the mother's failure to appear at the March 22, 2005 hearing was not a reasonable response under the circumstances. Our review of the record indicates there was great confusion surrounding this hearing. The assistant district attorney stated she was "not quite certain why we're hear on it.” The OCS representative stated she “didn't realize it was going to be a hearing.” The mother’s attorney stated he was unaware of the hearing until the day before, and when he attempted to contact the mother she was already in Oklahoma for a hearing involving C.F. The trial court maintained the mother's attend-anee was mandated based on personal service to her on December 22, 2004. As the mother's attorney opined, it appeared that all matters concerning M.F. were resolved on January 18, 2005, when a permanent placement of M.F. was made to the father. We agree. As will be explained in detail later in this opinion, the Child in Need of Care proceedings involving M.F. were terminated on that date, and the trial court was divested of jurisdiction. Therefore, the hearing held on March 22, 2005, was not proper and the mother cannot be held at fault for failing to attend it.


source: Caselaw Access Project

author:
      GENOVESE, Judge.
      COOKS, J.,

license: Public Domain

text:
    James W. TOWNSEND, et al. v. TRUSTEES OF LOUISIANA COLLEGE, et al.
    No. 05-1283.
    Court of Appeal of Louisiana, Third Circuit.
    April 12, 2006.

      James A. Bolen, Jr., Alexandria, Louisiana, for Plaintiffs/Appellants: James W. Townsend, Et AI
    Bradley L. Drell, Michael J. O’Shee, Alexandria, Louisiana, for Defendants/Appel-lees: Trustees of Louisiana College, Et Al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this case, Plaintiffs, alumni and financial supporters of Louisiana College, appeal the district court’s judgment denying their petition for a writ of mandamus seeking to invalidate the selection of the current president of Louisiana College. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 15, 2004, Dr. Rory Lee resigned as President of Louisiana College in Pineville, Rapides Parish, Louisiana. After Dr. Lee’s resignation, the Board of Trustees (Trustees) of Louisiana College empaneled a nine-member Presidential Search Committee (PSC) pursuant to Article III, Section 5, of the college’s bylaws.

In the months that followed, the PSC advertised for the position nationally and reviewed the résumés received from individuals interested in the position. After narrowing the field of prospects, the PSC issued a questionnaire and conducted a telephone interview with the top six most qualified candidates. Following the completion of the telephone interviews in August of 2004, the PSC chose Dr. Malcolm Yarnell (Yarnell), Dr. Stan Norman (Norman), and Dr. David Whitlock, as its top three most qualified candidates. After conducting personal interviews with each of these three candidates, the PSC selected Yarnell as its number one candidate, and Norman as its number two candidate.

The PSC presented its nomination of Yarnell for President of Louisiana College to a full meeting of the Board of Trastees on September 14, 2004. At a special meeting on September 24, 2004, Yarnell was offered the position of President of Louisiana College by the Trustees. The minutes of this special meeting also reflect that a minority report presented by Trustee Mary Moffett was offered in support of 12Pr. Joe Aguillard (Aguillard) for the position. Yarnell indicated that he would consider the Trustees’ offer; however, before the terms of a written contract could be finalized, and despite his interim involvement with the college, Yarnell withdrew his name from consideration on November 23, 2004.

At the Trustees’ meeting on December 14, 2004, six additional members were appointed by the Trustees to the original nine-member PSC, creating a committee of fifteen people. At the same meeting, Trustee Alan Shoumaker moved to nominate Aguillard for the position of President of Louisiana College, with said nomination being seconded by Ms. Mary Moffett. On January 13, 2005, several individual alumni and financial supporters of Louisiana College, James W. Townsend, Ruth R. Townsend, Johnnye Jo Lott, Stanley Lott, Ida C. Sampson, Donald E. Sampson, Jean L. Lively, Carlton L. Winbery, Sarah W. Ay-cock, and Sellers Aycock (Plaintiffs) filed a petition for writ of mandamus pursuant to La.Code Civ.P. art. 3861, et seg., requesting that the Trustees be ordered to fill the position of President of Louisiana College from a candidate nominated by the original nine-member PSC. Plaintiffs asserted that as alumni and financial supporters of Louisiana College they have an actual interest in whether the Trustees carry out their duties in accordance with the college’s bylaws.

At the Trustees’ meeting on January 17, 2005, Trustee Reverend William Smith nominated Aguillard, and Trustee Reverend Rick Aultman nominated Dr. John Traylor (Traylor), for the office of President. With thirty Trustees voting, seventeen |3votes were cast for Aguillard and thirteen votes were cast for Traylor.

The Trustees responded to Plaintiffs’ mandamus action by filing a declinatory exception of lack of subject matter jurisdiction, a dilatory exception of lack of procedural capacity, and a peremptory exception of no right of action, or no interest in the Plaintiffs to institute the suit.

Following a trial on the exceptions and on the merits on February 25, 2005, and following oral arguments on March 17, 2005, the trial court rejected Plaintiffs’ demands for issuance of the writ and overruled the Trustees exceptions of no right of action and lack of subject matter jurisdiction. Judgment was signed on April 5, 2005, dismissing Plaintiffs’ demands, with prejudice, and assessing Plaintiffs with court costs.

On May 9, 2005, a hearing was held to decide the Trustees’ motion to assess experts witness fees as costs of court regarding the testimony of court-accepted expert, C. Alan Jennings (Jennings), for his testimony regarding Robert’s Rules of Order. Judgment was signed on May 31, 2005, awarding $500.00 to Jennings for his expert witness testimony fee and taxing said fee as a cost of court against Plaintiffs.

Plaintiffs perfected this appeal contesting the trial court’s denial of their writ of mandamus and the assessment of Jennings’ expert witness fees as costs of court taxed against them.

ISSUES

In their two assignments of error asserted on appeal, Plaintiffs argue that the trial court erred in (1) failing to issue the writ of mandamus ordering the Trustees to select the college’s president from a nominee recommended by the original nine-member PSC, and in (2) relying upon the expert witness testimony of Jennings and | ¿assessing his fee against Plaintiffs as costs of court.

LAW AND DISCUSSION

Writ of Mandamus

Mandamus is an extraordinary remedy which is used sparingly by the courts. Bonvillian v. Dep’t of Ins., 04-332 (La.App. 1 Cir. 2/16/05), 906 So.2d 596.

Further, mandamus is to be used only when there is a clear and specific legal right to be enforced or a duty that ought to be performed. It never issues in doubtful cases. Although the granting of a writ of mandamus is considered improper when the act sought to be commanded contains any element of discretion, it has, nevertheless, been allowed in certain cases to correct an arbitrary and capricious abuse of discretion by public boards or officials.

Id. at 599 (citations omitted).

Plaintiffs contend that they have a cause and right of action to institute this mandamus proceeding against the Trustees of Louisiana College to compel the Trustees to fill the vacancy in the office of President with a nominee presented by the PSC.

Article III, Section 5, of the bylaws of Louisiana College provides:

In the event of a vacancy in the office of the President, the Executive Committee shall function as a Presidential Search Committee to submit nominations for candidates for that office. The search committee shall also include a faculty representative selected by the faculty and a student representative selected by the Student Government Association. Once constituted, the persons serving on the Presidential Search Committee shall serve as said committee until the position is filled. A vacancy in any of the offices of the College may be filled at any meeting of the Board of Trustees. The President of the College shall be an active member of a Southern Baptist Church.

The trial court ruled that the bylaws of Louisiana College did not contain language prohibiting the procedure implemented by the Trustees to elect Aguillard. The trial court, in rejecting Plaintiffs’ mandamus demand, stated:

Dr. Aguillard was not nominated by the search committee in | ^accordance with procedures set forth in the bylaws. However, he was nominated from the floor by a member of the Board of Trustees and elected by a majority vote of the Board of Trustees. The real question becomes whether a president of the college must be nominated by the search committee or if he may be nominated from the floor by a member — by a trustee.
We had testimony of Mr. C. Alan Jennings, an expert parliamentarian!;,] who testified that in the absence of a prohibition in the bylaws[,] nominations from the floor were acceptable. A review of the bylaws finds no prohibition against a floor nomination. It seems clear that the nominating committee has only the power to nominate and not to elect. The power to elect is vested in the Board of Trustees. There is no indication that there was any problem with the notice for the election or the election itself.
Thus this Court finds that Dr. Joe Aguillard was properly elected president of Louisiana College on January 17, 2005.

Accordingly, the trial court refused to impose a requirement that was not stated in the bylaws.

In response to Plaintiffs’ petition for writ of mandamus, the Trustees assert that not only do Louisiana College’s bylaws grant the Trustees the power to elect a president of the college, but the bylaws also grant the Trustees the authority to fill a vacancy in any of the offices of Louisiana College at any meeting of the Trustees. This authority is specifically granted to the Trustees in the bylaws. To the contrary, there is no provision mandating that the vacancy in the office of President be filled with a nominee presented by the PSC. We agree.

The bylaws do not require a President to be elected only from nominees from the PSC, nor do the bylaws prohibit nominations by Trustees. The bylaws do specify that “[a] vacancy in any of the offices of the College may be filled at any meeting of the Board of Trustees.” ' This provision confers upon the Trustees the requisite authority to fill the vacancy in the office of President at any meeting. Further, the function of the PSC is not to elect; it is to nominate. Contrary to the PSC’s testimony that its nominee, and only its nominee, is eligible for election by the Trustees, a | ^nomination by the PSC is merely a recommendation to which the Trustees may or may not subscribe. The end result, i.e., filling a vacancy in the office of President for Louisiana College, is accomplished solely by vote of the Trustees at any meeting of the Board of Trustees as explicitly set forth in Article III, Section 5, of the bylaws of Louisiana College. Thus, we find no error in the trial court’s judgment rejecting Plaintiffs’ demands for issuance of the writ of mandamus. Having affirmed the trial court’s judgment rejecting Plaintiffs’ demands for issuance of the writ of mandamus, this court need not address the issue of standing, which was first raised on appeal, but has now been rendered moot.

Expert Witness

Pursuant to La.R.S. 13:3666, expert witnesses are entitled to be compensated for their services in an amount to be determined by the court and taxed as costs to be paid by the party cast in judgment. The fixing of expert witness fees is largely within the sound discretion of the trial court and may not be reversed on appeal absent an abuse of discretion by the trial court. Massie v. Deloach, 04-1425, 04-1578 (La.App. 3 Cir. 3/2/05), 896 So.2d 1246, 1252, writ denied, 05-786 (La.5/6/05), 901 So.2d 1107.

Plaintiffs contend that the testimony of Jennings, a professional registered parliamentarian, was not needed and that it was error for the trial court to award Jennings an expert witness fee and tax said fee against Plaintiffs as a cost of court. Plaintiffs assert that Jennings’ testimony was superfluous, unnecessary, and erroneous regarding Robert’s Rules of Order and the propriety of the Trustees’ actions. We disagree.

Louisiana Code of Evidence Article 702 provides, “[i]f scientific, technical, or |7other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

“[Louisiana Code of Evidence Article] 702 states that experts may be qualified by reason of ‘knowledge, skill, experience, training, or education.’ Thus, formal education in the area of expertise is not required; ‘experience alone is enough to qualify a witness as an expert.’ ” Adams v. Chevron U.S.A, Inc., 589 So.2d 1219, 1224 (La.App. 4 Cir. 1991), writs denied, 592 So.2d 414, 592 So.2d 415 (La.1992) (quoting Aaron v. Bankers and Shippers Ins. Co. of New York, 475 So.2d 379, 382 (La.App. 1 Cir.1985)).

Further, “[n]ote (d) to [La.Code Evid. art. 702] explains that ‘[b]road discretion should be accorded the trial judge in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.’ ” Precht v. Case Corp., 99-1296, p. 10 (La.App. 3 Cir. 2/16/00), 756 So.2d 488, 496, writ denied, 00-791 (La.5/5/00), 761 So.2d 546.

The trial court recognized Jennings as an expert in the field of parliamentary procedure based upon his experience as a professional registered parliamentarian. Jennings’ testimony was specifically cited by the trial court as being relied upon and beneficial. Having considered Jennings’ presence at the meetings which forms the basis of this dispute, his testimony at trial, and his professional experience in the field of parliamentary procedure, the trial court did not abuse its vast discretion in accepting Jennings as an expert in the field of parliamentary procedure. Nor did the trial court abuse its discretion in awarding him an expert witness fee of $500.00 for |shis services and in taxing said fee against Plaintiffs as a cost of court.

DECREE

The judgment of the trial court is affirmed. We assess all costs of these proceedings to the Plaintiffs/Appellants.

AFFIRMED.

COOKS, J., concurs and assigns reasons.

COOKS, J.,

concurring.

| ¶After carefully reviewing Louisiana College’s bylaws, I am compelled to join in the majority’s opinion. In Article II, § 2 of the United States Constitution it is provided the President of the United States “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States ...” (Emphasis added.) In that section, the Constitution specifically binds the President and Senate together in the process of nominating and selecting these “officers of the United States.” In contrast, there is nothing in the Louisiana College bylaws which provide the PSC more than an advisory or nominating role in the selection process of the position of President of Louisiana College. The bylaws do not provide that the Board of Trustees must select a candidate nominated by the PSC; nor is there any provision in the bylaws to prohibit nominations by the Board of Trustees. Therefore, the PSC’s argument that the president’s position could only be filled from a candidate recommended by it was properly rejected.

      . Louisiana Code of Civil Procedure Article 3861 defines mandamus as "a writ directing a public officer or a corporation or an officer thereof to perform any of the duties set forth in Articles 3863 and 3864.”
      Louisiana Code of Civil Procedure Article 3864 provides, in pertinent part, that “[a] writ of mandamus may be directed to a corporation or an officer thereof to compel ... [t]he holding of an election or the performance of other duties required by the corporate charter or bylaws.”


author: THIBODEAUX, Chief Judge. COOKS, J.,

text:
    Gregory R. AYMOND v. Rich DUPREE.
    No. 05-1248.
    Court of Appeal of Louisiana, Third Circuit.
    April 12, 2006.
    Rehearing Denied June 7, 2006.

      Ronald J. Fiorenza, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, Henry Howard Lemoine, Jr., Lemoine & Wampler, Pineville, LA, for Defendant/Appellee — Rich Dupree.
    Gregory R. Aymond, Alexandria, LA, (In Proper Person).
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

h Gregory Aymond, the former attorney for Rapides Parish Waterworks District Number 3, filed a suit for defamation and slander against Rich Dupree, a commissioner of the water board, alleging that Dupree made false statements about him causing the board to terminate his attorney’s position with the waterworks district. The commissioner filed a special Motion to Strike Pursuant to La.Code Civ.P. art. 971. The trial court granted the commissioner’s motion and dismissed Aymond’s claims. Aymond appeals. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court erred in applying La.Code Civ.P. art. 971 and in dismissing Aymond’s claims pursuant to the special motion to strike;
(2) whether the trial court erred in hearing Dupree’s special motion to strike more than thirty days after service of the motion;
(3) whether the trial court erred in granting the special motion to strike before hearing all arguments on Ay-mond’s motion for discovery; and,
(4) whether the trial court denied Ay-mond procedural due process in granting the special motion to strike.

II.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Gregory R. Aymond, was the attorney for Rapides Parish Waterworks District Number 3 for approximately sixteen years. The defendant, Rich Du-pree, was a commissioner on the Board of Rapides Parish Waterworks District [¡¡Number 3 (hereinafter “Water Board” or “Board”). In April of 2004, Aymond was assigned the task of investigating a water district line run across the private property of Mayor Roy Hebron of the Town of Ball. The line was allegedly run without state approval, without servitudes, and at no charge to the mayor, expending approximately $5,000.00 of public funds. Aymond investigated the issue, took photographs and statements, and submitted a report to the Water Board in May 2004, resulting in a Board vote to turn the matter over to the legislative auditor, State Ethics Board, and the Rapides Parish District Attorney. The District Attorney’s office subsequently informed the Water Board that it must institute a civil proceeding to recoup the public funds expended on laying the water line.

On July 13, 2004, when the employment contract of Aymond, the Water Board’s attorney, came up for annual renewal, the Board voted, with a six to three majority vote, not to renew the employment contract of Aymond, thereby terminating his position as attorney for the Water Board. Aymond asserts that the defendant, Du-pree, made false statements and influenced two crucial votes against Aymond, those of commissioner Thurman Kelly and of the newly-elected Board President, Otha Hai-ley, whose votes in the opposite direction would have resulted in Aymond keeping his position as the Water Board’s attorney. However, Aymond provides details only as to events influencing the vote of Kelly.

A couple of hours after the vote on July 13, 2004, Aymond called Kelly seeking an explanation for the Board’s vote against renewing Aymond’s employment contract. According to Aymond, in addition to being on the Water Board together, Kelly and Dupree were City of Pineville employees. In that capacity, Dupree was Kelly’s supervisor. Aymond alleges that Kelly told him on the phone that for three weeks preceding the Board’s vote, Dupree had solicited Kelly’s vote to terminate Ay-mond’s contract. However, Kelly subsequently signed an affidavit stating that at | ano time did Dupree attempt to solicit Kelly’s vote. Aymond further alleges that Kelly told Dupree that he would only vote against Aymond if Dupree and Hailey first met with Aymond to discuss some of Kelly’s concerns. According to Aymond, Kelly stated that Dupree called him on the way to the Water Board meeting and informed him that he had met with Aymond to discuss Kelly’s concerns but that Ay-mond informed Dupree that Aymond “would not change.” Aymond secretly taped this conversation with Kelly and planned to play the tape at the discovery hearing.

On July 13, 2004, Aymond called Dupree and secretly taped that conversation as well. Aymond alleges that during the conversation Dupree said Aymond’s termination had nothing to do with his legal abilities, but rather was for failing to make the Mayor Hebron waterline investigation go quietly away. Aymond further alleges in his amending petition that on July 27, 2004, at a public meeting, Dupree announced that he had informed a local newspaper that he did not have confidence in Aymond’s control of matters involving the Water Board and that Aymond’s termination had nothing to do with Mayor Hebron.

Dupree asserts that during his conversation with Aymond, he told Aymond that he was not satisfied with his handling of certain assignments, nor with the manner in which Aymond had “dressed down” fellow commissioners in open meetings. Dupree also asserts that he told Aymond that there was an overall feeling among Board members that a change needed to be made to move the Board forward.

Aymond filed a suit for defamation and slander in Pineville City Court against Du-pree on March 2, 2005. He alleged that Dupree’s statement to Kelly regarding Ay-mond’s refusal to change, as well as his subsequent public statement regarding the reason for Aymond’s termination, were false statements and were intended to publicly discredit Aymond and to maliciously embarrass him.

14Pineville City Court Judge J. Phillip Terrell, Jr. recused himself due to an association with Aymond, and Judge Robert P. Jackson was appointed ad hoc to hear the case.

In April 2005, Aymond filed a Motion to Strike certain affirmative defenses; Du-pree filed a special Motion to Strike Pursuant to La.Code Civ.P. art. 971; and Ay-mond filed a Motion for Discovery Under Louisiana Code of Civil Procedure Article 971 and Opposition to Application of Article 971 and For Attorney Fees and For Sanctions. All three motions were set for hearing on July 12, 2005.

Dupree’s special Motion to Strike Pursuant to La.Code Civ.P. art. 971 attached the affidavits of Dupree and Kelly. Dupree’s affidavit states that he did express his opinion that Aymond’s contract should not be renewed at the July 13, 2004 meeting; that his statements were made on matters pertaining to a public issue or an issue of public interest and were made without malice; that he had the discretion to vote for or against renewing the employment contract; that his vote and opinions were an exercise of that discretion; that any statement he made regarding the effectiveness of Aymond was true or substantially true; and that he at no time solicited Kelly to vote against Aymond’s renewal as the Board’s attorney. As previously indicated, Kelly’s affidavit also states that at no time did Dupree attempt to solicit him to vote against renewing the annual contract of the Board’s attorney, Aymond.

Aymond did not file any opposing affidavits. He alleges that he was prevented from doing so because the counsel for the Water Board and the counsel for the City of Pineville, respectively, instructed the Board members and Kelly not to talk with him.

J¿II.

LAW AND DISCUSSION

Because the granting of a special Motion to Strike Pursuant to La.Code Civ.P. art. 971 involves issues of law, we will conduct a de novo review of the trial court’s application of the law. See also, Thomas v. City of Monroe Louisiana, 36,-526 (La.App. 2 Cir. 12/18/02), 833 So.2d 1282. Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery. Trahan v. State ex rel. Dept. of Health and Hospitals, 04-743 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245; Moak v. Ill. Cent. R.R. Co., 93-783 (La.1/14/94), 631 So.2d 401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990). Such discretion will not be disturbed on appeal absent a clear showing of abuse. Moak, 631 So.2d 401.

La.Code Civ.P. art. 971 Special Motion to Strike

Aymond contends that the trial court erred in granting Dupree’s special Motion to Strike Pursuant to La. Code Civ.P. art. 971, and that Article 971 is not applicable to the claims of Aymond. Dupree asserts that his special Motion to Strike Pursuant to La.Code Civ.P. art. 971 was properly granted where the case involved the presence of protected free speech and a connection to a public issue. We agree.

The special motion to strike, governed by La.Code Civ.P. art. 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.
|(i(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.
C. The special motion may be filed within sixty days of service of the petition, or in the court’s discretion, at any later time upon terms the court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.
D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.
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:
(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.

17This provision was added by Acts 1999, No. 734, § 1. As stated in Thomas v. City of Monroe Louisiana, Section 2 of the Act provides:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

Id. at 1286.

Hence, Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Lee v. Pennington, 02-381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, writ denied, 02-2790 (La.1/24/03), 836 So.2d 52. Accordingly, La. Code Civ.P. art. 971 provides that a cause of action against a person arising from any act 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.

Thus, the moving party must first satisfy the burden of proving that the cause of action arises from an act in the exercise of his right of free speech regarding a public issue. If the mover satisfies this initial burden of proof, then the burden shifts to the plaintiff to show a probability of success on his claim. Thomas, 833 So.2d 1282. In the present case, Du-pree’s burden as the moving party is to show that the suit against him arises from an act in exercise of his right of free speech regarding a public issue. To that end, in support of his special Motion to Strike Pursuant to lsLa.Code Civ.P. art. 971, Dupree attached the original and amending petitions filed against him by Aymond, Dupree’s answer and affidavit, and the affidavit of Kelly. All of these exhibits demonstrate that Aymond’s suit against Dupree arises from Dupree’s membership as a commissioner on the Board of Rapides Parish Waterworks District Number 3, and from the public issue of the Board members renewing or not renewing the employment contract of Aymond as attorney for the Board.

The affidavits of Dupree and Kelly state that they were commissioners on the Board of Rapides Parish Waterworks District Number 3 at the time of the meeting of the Board on July 13, 2004, wherein the Board decided on the non-renewal of the attorney contract of Aymond, and both state that Dupree did not solicit the vote of Kelly. Dupree’s affidavit further states that he expressed his opinion that the contract should not be renewed, and that all statements made were on matters pertaining to a public issue or issue in the public interest and were related to Dupree’s discretion as a commissioner of the Board to vote for or against renewing the contract. In opposition to the application of Article 971, Aymond contends that Dupree made false statements which are not the protected free speech contemplated in Article 971.

However, falsity is an element of a defamation claim to be proved by Aymond as plaintiff after the burden shifts to him. We find that Dupree has met his burden under Article 971. More specifically, in Darden v. Smith, 03-1144 (La.App. 3 Cir. 6/30/04), 879 So.2d 390, writ denied, 04-1955 (La.11/15/04), 887 So.2d 480, we stated as follows:

We first consider the defendants’ initial burden in this case, i.e. demonstrating that the subject matter of the suit stems from an action relating to free speech and in relation to a public issue. The defendants supported their motion to strike by submitting various exhibits. Notwithstanding these exhibits, reference to the plaintiffs petition alone demonstrates that the causes of action arise | flfrom acts in furtherance of the defendants’ right of free speech and in connection with a public issue. This is true as the statements at issue in the plaintiffs suit relate to actions of the Police Jury and its individual Police Jurors; in particular, motives allegedly underlying the Police Jury’s decision making process. Whether truthful or not, the statements clearly relate to a “public issue” as defined by the examples of such an act provided under La.Code Civ.P. art. 971(F)(1). Thus, as commenting on such an issue is a matter in furtherance of the right of free speech guaranteed in the United States and Louisiana Constitutions, the burden of proof shifts to the plaintiff to demonstrate the probability of her success on each of the claims alleged by her petition.

Id. at 396-7 (emphasis added).

Because Dupree has met his burden under Article 971, the burden now shifts to Ay-mond.

In order to overcome Dupree’s motion, Aymond is required to demonstrate a probability of success on his claim of defamation through the pleadings and opposing affidavits. Accordingly, to maintain an action for defamation, he has the burden of proving five elements: (1) defamatory words; (2) unprivileged publication; (3) falsity; (4) malice (actual or implied); and, (5) injury. Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790 (La.1992). Defamation involves the invasion of a person’s interest in his or her reputation and good name. City of Natchitoches v. Employers Reinsurance Corp., 02-147 (La. App. 3 Cir. 6/5/02), 819 So.2d 413. A defamatory communication or defamatory words are those which harm the reputation of another so as to lower him in the estimation of the community or to deter others from associating with him. Connor v. Scroggs, 35,521 (La.App. 2 Cir. 6/12/02), 821 So.2d 542; See also, Sassone v. Elder, 626 So.2d 345 (La.1993).

Whether a particular statement is objectively capable of having a defamatory meaning is a legal issue to be decided by the court, considering the statement as a whole, the context in which it was made, and the effect it is reasonably |1 (intended to produce in the mind of the average listener. Bell v. Rogers, 29,757 (La.App. 2 Cir. 8/20/97), 698 So.2d 749. Insofar as a plaintiff is a public official, the Louisiana Supreme Court has observed that, “[a] public official plaintiff cannot recover for a defamatory statement relating to his or her official conduct, even if false, unless the public official proves actual malice by clear and convincing evidence.” Davis v. Borskey, 94-2399, p. 10-11 (La.9/5/95), 660 So.2d 17, 23 (quoting Kidder v. Anderson, 354 So.2d 1306, 1308 (La.1978), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123).

In the present case, Aymond alleges that Dupree made two defamatory statements about him. One statement complained of was allegedly made in private to a third person, and one was made ostensibly in public. More specifically, Aymond alleges that Dupree told Kelly in a private telephone conversation that Ay-mond said he “would not change.” We do not find that this statement is defamatory per se or that it rises to the level of a defamatory communication that harms the reputation of another so as to lower him in the estimation of the community or cause others not to associate with him per the definitions of defamation in Connor and Sassone. Additionally, Aymond has not shown any evidence of malice. Dupree was not in line for the position of attorney for the Board, and Aymond fails to show any malicious motivating factor on the part of Dupree. As previously indicated, Ay-mond did not file any opposing affidavits in support of his claim for defamation.

Moreover, Aymond has failed to show actual injury. Kelly stated in his affidavit that Dupree did not solicit his vote against Aymond. Moreover, Kelly’s vote alone was not the determinative vote against renewing Aymond’s contract. There were six votes against renewing the contract and only three votes in favor of renewal. While Aymond alleges that Hai-ley would have voted for him but for the allegedly false statement, there is no discussion, other than the bare allegation, let alone In evidence, that Hailey’s vote would have been different. Therefore, three of the five criteria for a defamation claim are missing. Accordingly, we find that Ay-mond has not established a probability of success on his claims with regard to the first statement allegedly made to Kelly.

The second statement complained of was allegedly made by Dupree at a second Board meeting on July 27, 2004, approximately two weeks after the Board voted not to renew Aymond’s contract. Aymond alleges that during this meeting, Dupree announced that he had informed a local newspaper that he did not have confidence in Aymond’s control of matters involving the waterworks district and that Aymond’s termination had nothing to do with Mayor Hebron. Aymond alleges that this statement is opposite to the statement that Dupree allegedly gave to Aymond on the telephone, and that the statement was defamatory. That is, Aymond alleges that Dupree told Aymond on the telephone right after the vote that the termination was not based upon Aymond’s legal abilities but was for his failure to make the Mayor Hebron issue go quietly away. While this allegedly contradictory statement was supposed to have been made to the local press, there is no allegation against the newspaper, and no allegation that the comment was even printed. Du-pree is the only named defendant in this suit.

As previously indicated, Dupree asserts that during his conversation with Aymond, he told Aymond that he was not satisfied with his handling of certain assignments, nor with the manner in which Aymond had “dressed down” fellow commissioners in open meetings. Dupree also asserts that he told Aymond that there was an overall feeling among Board members that a change needed to be made to move the Board forward.

Regardless of what Dupree told Aymond on the telephone, there simply is not evidence of a defamatory communication that harms the reputation of Aymond [ 12or lowers him in the estimation of the community or prevents others from associating with him. This is particularly true where Ay-mond admits that Dupree made it known that he wanted Aymond to continue representing the Board in ongoing litigation. It is also possible that the public statement was the true statement and that the comments Dupree made to Aymond on the telephone were false or partially false, simply to avoid confrontation. Contextually, both the statement to Aymond and the statement to the press could be seen as true since the Mayor Hebron issue was a legal matter that, according to Aymond, the Board apparently wanted to resolve internally, without litigation, but which Ay-mond controlled differently, resulting in the District Attorney’s involvement and advice to bring a civil suit. It is true that Aymond alleges that the civil litigation never occurred and that the water line was subsequently declared public, against legal advice, but that is not our issue. There is often more than one right way to resolve a problem.

Additionally, the public statement regarding the termination of the contract not revolving around Mayor Hebron could have been stated in a way that indicated that the termination was not over the May- or Hebron matter alone, or over Mayor Hebron, the person. We do not know because Aymond did not attach any affidavit from the press, or newspaper clipping, or any other evidence. Moreover, Aymond apparently had offended some of the commissioners at prior meetings. The ultimate result is that six out of nine Board members wanted a change, and it is unlikely that this is a result of one singular incident.

Aymond has failed to show any malicious motivation on the part of Dupree for the statement regarding the reason for not renewing Aymond’s contract. Moreover, since the statement was made approximately two weeks after the contract renewal was voted down, and since Dupree made it known that he wanted Aymond to continue representing the Board in ongoing litigation, Aymond has shown no h ¡¡injury with regard to the statement to the press. We do not have a direct quote of the statement, and do not know whether it was actually printed, but surmise that the injury is only perceived by Aymond because of the alleged reference to a lack of “confidence.”

Moreover, Aymond represents the comment in different ways in his petition and in his brief. He calls it a lack of confidence in his “ability” to handle the Water Board’s legal matters in one argument, but his petition states that Dupree said he did not have confidence in Aymond’s “control” of matters involving the waterworks district. These are two different concepts, the latter being much more palatable and less critical. Additionally, if Dupree told Aymond that the non-renewal of the contract was no reflection on his legal “abilities” and told the press that he did not have confidence in Aymond’s “control” of matters involving the waterworks district, those two statements are not necessarily opposite such that one is a lie while the other is a truth. In either scenario, expressing a lack of confidence is an opinion. As to the other part of the statement regarding the announcement that the reason for not renewing the contract had nothing to do with Mayor Hebron, we fail to see how this statement was defamatory such that it lowers the public’s esteem of Aymond.

In addition to concluding that the comments at the July 27, 2004 Board meeting do not rise to the level of a defamatory communication, we find that Aymond has failed to show malice and injury with his bare allegations. Since the claim cannot survive if all five elements are not present, we find that Aymond failed at the hearing to establish a probability of success on his claim, and we affirm the trial court’s application and granting of the special motion to strike under La.Code Civ.P. art. 971. We now turn to the procedural issues complained of by Aymond.

|uHearing Date of Special Motion to Strike

Dupree filed and served his special Motion to Strike Pursuant to La.Code Civ.P. art. 971 on April 21, 2005. The trial court set the hearing for this motion on July 12, 2005. Aymond contends that the trial court erred in hearing Dupree’s special motion to strike more than thirty days after service of the motion, pursuant to La.Code Civ.P. art. 971(C) (emphasis added), which provides as follows:

C. The special motion may be filed within sixty days of service of the petition, or in the court’s discretion, at any later time upon terms the court deems proper. The motion shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing.

The record reveals that on May 17, 2005, the trial court set a total of three hearings on three separate motions in the case for July 12, 2005. The motions included the above special motion to strike filed by Dupree, and also a motion to strike certain defenses and a motion for discovery filed by Aymond. The record also reveals that Judge Robert P. Jackson was appointed ad hoc to hear the case after Judge Terrell recused himself due to a prior association with Aymond. It is therefore logical and in the interest of judicial economy that all motions to be heard by the special ad hoc judge should be scheduled on the docket if possible on the same date, particularly since one of the motions, the special Motion to Strike Pursuant to La.Code Civ.P. art. 971 at issue herein, could dispose of the case in its entirety.

The very purpose of the legislature’s enactment of La.Code Civ.P. art. 971 in 1999 was to dispense as soon as possible with litigation that would not succeed on the merits. Had it intended to require, as it has in numerous articles, oral or written reasons from the court explaining the court’s deviation from the thirty-day scheduling provision, the legislature would have included a mandate for same. There is no such mandate. The article itself allows deviation from the thirty-day scheduling |1S'provision whenever docket conditions require it. This is broadly stated, and, in fact, as previously indicated, the legislative intent was that the article itself is to be broadly construed. Moreover, the defendant, Dupree, did not complain of the date set for the hearing on his special motion to strike; nor did Aymond object to the hearing date when scheduled in the court below. It is only now that the motion has been granted that Aymond complains. Accordingly, this assertion is not only without merit, but because it is being raised for the first time on appeal, it is also not properly before this court.

Plaintiffs Motion for Discovery

Aymond asserts that the trial court erred in granting Dupree’s special motion to strike without first ruling on Aymond’s discovery motion. Aymond cites La.Code Civ.P. art. 71(D) (emphasis added), which provides as follows:

D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

It is clear from the mandatory language of the statute that discovery is to be stayed once a special motion to strike under Article 971 is filed. Again, the purpose of the statute is to put an end to the litigation unless the plaintiff can demonstrate a probability of success on his claims. The permissive portion of the statute allows further discovery at the court’s discretion. However, discovery is not required for the court to make its determination regarding the merit of a plaintiffs claims of defamation. Subsection (A)(2) of Article 971 provides that, “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.”

|1fiDupree provided the court with his own affidavit and the affidavit of Kelly, both stating that Dupree did not solicit Kelly’s vote against Aymond. Dupree’s affidavit also states that any opinions he expressed regarding Aymond were on a public issue and relative to his discretion as a commissioner to vote for or against Aymond’s contract renewal, and that any statement he made in connection with Ay-mond’s effectiveness as the Board’s attorney were true or substantially true and were made without malice. Aymond had already conducted some discovery and did not file any opposing affidavits. The trial court was not required to permit further discovery and did not err in ruling on Dupree’s special Motion to Strike Pursuant to La.Code Civ.P. art. 971 without allowing further discovery.

Procedural Due Process

Aymond contends more specifically that he was not permitted a hearing on his discovery motion and that the trial court denied him procedural due process in deciding to grant Dupree’s special Motion to Strike Pursuant to La.Code Civ.P. art. 971 before the court heard Aymond’s discovery motion. We disagree. Aymond had filed a comprehensive memorandum in support of his discovery motion stating that he desired to depose Dupree, Kelly, the City of Pineville, and the Rapides Parish Waterworks District Number 8, and arguing why further discovery should be allowed. He argued at the hearing that he wanted to impeach the affidavits of Dupree and Kelly, and he attempted to call them as witnesses at the hearing. Aymond put this in the form of a motion, and the trial court denied his motion.

117Pupree’s attorneys argued that La. Code Civ.P. art. 971 called for a determination based upon pleadings and affidavits, not live testimony, indicating that the purpose of the special motion to strike is to avoid a full blown trial. Specifically, Article 971(A)(2) provides, “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.” La.Code Civ.P. art 971(A)(2).

The trial court took time out to examine the language in the statute again in court and subsequently did not allow Aymond to call live witnesses but did allow him to proffer what he proposed to introduce had he been allowed to call Dupree and Kelly as witnesses. Aymond argued that Kelly would testify that Dupree told him that Aymond said he would not change, and that was the reason that Kelly voted against Aymond. The attorney for Du-pree objected stating that this is not what Kelly’s testimony would be. Aymond was then allowed to proffer that if called, Du-pree’s testimony would be that Dupree informed Aymond that one of the reasons Aymond was terminated was because of the manner in which he handled the Mayor Hebron matter and not because of his legal abilities. In both instances, Aymond indicated that Kelly and Dupree would refute their affidavits rather than refute the statements allegedly made to Aymond.

The trial court apparently did not believe that calling these men as witnesses or allowing further discovery would result in a different outcome. As previously indicated, a trial court’s decisions regarding discovery are not to be disturbed absent an abuse of discretion. In this case, the special motion to strike is to be granted based upon the pleadings and affidavits, and this is what the trial court did.

We again turn to the permissive language in La.Code Civ.P. art. 971(D) which mandates that discovery be stayed once the special motion to strike is filed but 11Rallows the judge the discretion of permitting further discovery. Again, the pertinent provision of Article 971 (emphasis added) states:

D. All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this Article. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. Notwithstanding the provisions of this Paragraph, the court, on noticed motion and for good cause shown, may order that specified discovery be conducted.

Because Aymond was allowed to file a comprehensive brief in support of his motion for further discovery, setting forth his arguments before the trial judge, and because he argued portions of the brief and was allowed to proffer the substance of what he hoped to introduce, we find no error in the trial court’s ruling.

IV.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court in all respects. Costs are assessed to the plaintiff-appellant, Gregory R. Aymond.

AFFIRMED.

COOKS, J., Dissents and Assigns Written Reasons.

COOKS, J.,

dissenting.

|-i Gregory R. Aymond was the attorney for the Rapides Parish Waterworks District Number 3. In his capacity, as commission attorney, he investigated the misuse of public funds by Mayor Roy Hebron. At the conclusion of his investigation, Mr. Ay-mond submitted a report to the Water Board and, as a result, the Water Board turned the matter over to the district attorney, the ethics board and the legislative auditor. Rich Dupree is a member of the Water Board and allegedly a friend of Mayor Hebron. Shortly thereafter, Mr. Aymond’s employment contract was not renewed by the water commission. Mr. Aymond alleges Mr. Dupree made false statements about him and attempted to injure his reputation in the community as a result of his investigation and report concerning the mayor. He filed a defamation and slander suit against Mr. Dupree. Additionally, Mr. Aymond alleges Mr. Dupree influenced two crucial votes, causing him to lose his employment with the commission. Mr. Dupree filed a Motion to Strike pursuant to La.Code Civ. P. art. 971, which provides, in relevant 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.

| ¡/The trial court dismissed Mr. Ay-mond’s petition and the majority opinion affirms, citing this court’s decision in Darden v. Smith, 03-1144 (La.App. 3 Cir. 6/30/04), 879 So.2d 390.

■ I respectfully disagree with the opinion dismissing Mr. Aymond’s suit using Article 971. I submit the proper procedural vehicle to test the validity of this claim is a motion for summary judgment, not a motion to strike under Article 971. I do not think Article 971 was intended to be used to prevent plaintiffs, such as Mr. Aymond, from filing a suit for defamation. Defamation laws place limits on an individual’s right of free speech. The basis for Mr. Aymond’s claim is Mr. Dupree engaged in prohibited speech which damaged his reputation in the community. Mr. Aymond is clearly entitled to assert a claim for the injuries he allegedly suffered. If we apply the reasoning of the majority opinion, no defamation suit will ever survive and a plaintiff will be condemned to pay attorney’s fees for attempting to petition for redress of a grievance.

Article 971 was intended to dispose of lawsuits filed in retribution against individuals asserting their right to petition the court for redress of grievances or against individuals speaking out publicly regarding a “public issue.” It was meant to protect individuals, such as Mr. Aymond, who, as attorney for the commission, was hired to investigate and submit a report on a matter involving the use of public funds. It was not meant to protect public bodies or public figures from lawsuits filed by individual citizens, even though those lawsuits may ultimately be dismissed on a motion for summary judgment. The threshold inquiry under this provision is whether the matter is within the realm of a “public issue.” Clearly, the alleged defamatory remarks by Mr. Dupree were meant to discredit Mr. Aymond, personally, for exercising his responsibility as attorney for the commission to speak out on a public ^matter. Therefore, I would find Article 971 inapplicable to the present situation and require Mr. Dupree to seek dismissal by way of a summary judgment.

Darden v. Smith, cited by the majority, does not support a dismissal based on Article 971 in this case, in fact, just the opposite. In Darden, Mr. Smith filed a federal law suit against the Concordia Parish Police Jury and its members alleging racial discrimination in the issuance of housing permits. Ms. Darden was a member of the Police Jury and was offended by allegation of racial discrimination. Mr. Smith also filed a complaint against Ms. Darden with the Ethics Board alleging a conflict of interest. When the federal court suit was dismissed and the ethics complaint was resolved, Ms. Darden filed a defamation suit against Mr. Smith. Mr. Smith filed a Motion to Strike pursuant to Article 971. This court examined Ms. Darden’s petition and found her cause of action was based on statements made in the federal law suit which “arise from acts in furtherance of the defendant’s right of free speech and in connection with a public issue.” Moreover, in Darden, this court awarded attorney’s fees as mandated under the act. Although the facts in Darden warranted the application of Article 971, because of the mandatory attorney’s fees provision, I had reservations concerning the effect Article 971 might have on a plaintiffs right to petition the court and filed a concurring opinion, stating:

By mandating the award of attorney’s fees to a prevailing defendant, in every case, as the majority has done, we risk penalizing individuals for asserting their constitutional right to petition the court for redress of an alleged grievance. Although Ms. Darden did not present enough evidence to sustain her cause of action, she had every right to defend her character and reputation against a perceived attack. She had a reasonable belief in the rightness of her cause evidenced by the fact that both the federal petition and the ethics complaint were resolved in her favor. I would find the award of attorney’s fees a discretionary matter based on the individual facts of the case and, in this case, I would have declined an award.... To mandate attorney’s fees as a penalty in every case would chill a plaintiffs right to petition the court. If, in the alternative, La. Code Civ. P. art. 971 does mandate an award of attorney’s fees in every case to a prevailing defendant, I would |4have used the motion for summary judgment to decide this case.

Darden v. Smith, 879 So.2d at 400-401. (Cooks, J., dissenting.)

The factual situation presented in Dar-den is not analogous to that in the present case and the result reached in the majority opinion will have the effect of chilling the right of individuals to speak out publicly concerning a public issue or petition the court for redress of an alleged grievance without fear of retribution. Mr. Ay-mond was the attorney for the commission. It was Mr. Aymond’s responsibility and it was he who investigated the alleged wrongdoing by a public official. The defamatory and slanderous comments in this case, were made in response to Mr. Ay-mond’s protected conduct in investigating the alleged wrongdoing and exposing the matter to the commission. Mr. Aymond must be free to speak out against wrongdoing, which injures the public, without fear of reprisal from public officials whose interests should be synonymous with those of the public which Mr. Aymond seeks to protect. In this case, Mr. Ay-mond’s reputation in the community was allegedly damaged, and now, according to the majority opinion, he is hindered from seeking redress. The commission members should not have “public interest” in suppressing the speech of Mr. Aymond, made in connection with a public issue, and done within his authority as attorney for the commission. In this case, to allow this commission member to use a motion to strike under Article 971 would result in the following: first, it would thwart the efforts of any attorney or individual to publicly disclose alleged wrongdoing by public figures and would subject the attorney or individual to being defamed by the public figures who are the subjects of the investigation; and, second, it would severely undermine Mr. Aymond’s constitutional right to petition for redress of a grievance and to exercise his free speech in matters involving the public interest. Mr. Aymond does have a probability of success on his claim. Mr Aymond is alleging he was defamed and that it was done maliciously and directly connected with his investigation of wrongdoing by the public official. The trial court did not allow him an opportunity to present any evidence to support his claim, which evidence would be | Badmissible in response to a motion for summary judgment and relevant to the element of malicious intent. The commission member does not have a free speech right to. defame Mr. Aymond when Mr. Aymond was exercising his free speech right to speak on a public issue involving a public official. To say, in this case, that a member of a public body can shield itself, by use of the present motion to strike, means that no defamation suits would ever stand when a public official or public body defames an individual for speaking out against the public body.

Stately differently, in this case, if Mr. Aymond had been sued by a public official for defamation, it is Mr. Aymond who had the right to use Article 971, as it was intended, to protect him for speaking out on a public issue stemming from his investigation and recommendations in connection with a public matter. For the foregoing reasons, I respectfully dissent from the majority opinion.

      . After Dupree argued that Aymond failed to allege constitutional violations of due process in the trial court, Aymond stated in his reply brief that in arguing a denial of due process, he was not arguing the constitutionality of La.Code Civ.P. art. 971. We would just note that our jurisprudence has determined that no constitutional flaw exists in the construction of Article 971. See Lee, 830 So.2d 1037.