author: PARRO, J. McCLENDON, J.,

text:
    THINKSTREAM, INC. and Barry Bellue v. Michael H. RUBIN, Deborah D. Harkins, Emily B. Grey and McGlinchey Stafford, PLLC.
    No. 2006 CA 1595.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2007.

      Brent D. Burley, Gonzales, LA, for Plaintiff-Appellant, Barry Bellue.
    Richmond C. Odom, Baton Rouge, LA, for Plaintiff-Appellant, Thinkstream, Inc.
    James H. Gibson, David J. Ayo, Allen & Gooch, Lafayette, LA, for Defendants-Ap-pellees, Michael H. Rubin, Deborah D. Harkins, Emily B. Grey, and McGlinchey Stafford, PLLC.
    Before PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

| ^Plaintiffs, Thinkstream, Inc. (Think-stream) and Barry Bellue, appeal the judgment of the trial court, dismissing their suit with prejudice pursuant to a special motion to strike in accordance with LSA-C.C.P. art. 971. We affirm.

FACTUAL AND PROCEDURAL HISTORY

This matter involves a suit for damages filed by Thinkstream and Bellue, Think-stream’s president and CEO, against the law firm of McGlinchey Stafford, PLLC, Michael H. Rubin, Deborah D. Harkins, and Emily B. Grey (collectively, McGlin-chey). Thinkstream and Bellue allege that they sustained damages as a result of actions taken by McGlinchey in representing a client in litigation against Thinkstream and Bellue. Although the matter before this court involves only the suit against McGlinchey, there were several other proceedings relevant to an understanding of the background of this suit.

The Request for Proposals

In July 2003, the Louisiana Commission on Law Enforcement and Administration of Criminal Justice (LCLE) issued a “Request for Proposals” (RFP) on behalf of the Louisiana Integrated Criminal Justice Information System (ICJIS) and its Policy Board (Board) for the development of a “comprehensive solution to provide Information sharing and data integration across the State’s criminal justice community.” According to the RFP, each proposal was to be reviewed and evaluated by an evaluation committee (committee). Each Individual committee member was to evaluate the technical sections of the written proposals in light of a set of criteria established by the RFP. The RFP further provided that contract negotiations would be initiated with the bidder whose proposal had received the highest score and was determined to be in the best interests of the state in light of the established criteria.

After the committee established by the Board completed its evaluation of the pro-posáis, the pool of bidders was narrowed to three companies based on the average score assigned by the committee to each bidder. Based on these scores, Templar Corporation (Templar) was ranked first, and Thinkstream was ranked third. The top Uthree bidders were invited to give oral presentations before the Board. After hearing the presentations, the Board awarded the contract to Thinkstream, despite the fact that Templar had been ranked first by the committee after it had applied the scoring methodology established by the RFP.

On April 9, 2004, Templar protested the award of the contract to Thinkstream by sending a letter to Michael Ranatza, the Executive Director of the LCLE, in accordance with LAC 34:V.145(8). On April 15, 2004, Mr. Ranatza denied the protest in writing. Shortly thereafter, Templar hired McGlinchey to appeal the denial of the protest, and on April 29, 2004, McGlin-chey filed an appeal before the Commissioner of Administration (Commissioner) in accordance with LAC 34:V.145(11). In the petition of appeal, Templar generally contended that the Board had not properly followed the procedures established by the RFP in awarding the contract to Think-stream. Templar further contended that the Board had improperly applied additional criteria, not established by the RFP, in awarding the contract. In addition, beginning with paragraph 30 of the appeal, Templar requested expedited discovery and an evidentiary hearing. Paragraph 32 of the appeal specifically stated:

Finally, Templar is entitled to expedited discovery to determine whether any Policy Board or the Commission members retained stock ownership in Thinkstream or participated in private meetings regarding Thinkstream, as the “IC-JIC Board Meeting Minutes” attached as Exhibit “8” indicate that Colonel Mike Barnett of the East Baton Rouge Parish Sheriffs Office held stock in Thinkstream.10 On information and belief a public request for disclosure of Thinkstream’s stockholders has been made by the State prior to the release of the RFP.

Footnote 10 provided:

Templar is particularly I interested in this type of discovery due to the recent United States Senate Ethics Committee investigation of a complaint involving retiring Senator Ben Campbell and Think-stream. In that regard, attached as Exhibit “9” is an article published April 16, 2004, in the Denver Post.

On May 4, 2004, counsel for Think-stream wrote a letter to Mr. Rubin at McGlinchey, requesting that the appeal be amended to delete paragraph 32 and footnote 10. The letter further stated that counsel had been instructed by his client to file suit immediately to recover damages “for these unwarranted and untruthful Lallegations” if the requested amendments were not made. Accordingly, on May 5, 2004, McGlinchey filed a motion to amend the appeal petition. Attached to the motion was an amended petition of appeal that did not contain the allegedly offending paragraph and footnote.

On May 20, 2004, the Commissioner issued a ruling, concluding that the Board had not followed the procedures set forth by the RFP in awarding the contract. In so ruling, the Commissioner noted the Board’s stated position that the committee acted only in a technical review capacity, and that the Board Itself was to act as the “evaluation committee” established by the RFP with full power to award the contract. However, the Commissioner concluded that there was no evidence that the Board members actually had performed the functions required of the “evaluation committee” by the RFP. Accordingly, the Commissioner vacated the award to Think-stream and remanded the matter to the Board for farther proceedings consistent with the RFP. Rather than award the contract after complying with the procedures established in the RFP, the Board simply abandoned the process and chose to use the funds set aside for the contract for another purpose.

Thinkstream v. Templar

Instead of instituting judicial action to challenge the decision of the Commissioner as authorized by LAC 34:V.145(11), Thinkstream filed suit against Templar on June 21, 2004, based upon Templar’s successful appeal of the contract award. In the original petition, Thinkstream alleged that it had suffered tremendous economic damage as a result of Templar’s “baseless, arbitrary, and capricious appeal.” Think-stream further alleged that Templar had: (1) intentionally and negligently made misrepresentations about Thinkstream; (2) intentionally and negligently interfered with contract or business relations; and (3) instituted legal proceedings for the sole purpose of delaying the awarding of the contract to Thinkstream until the time limitations of the award had expired or could not be met. Thinkstream also suggested in its petition that Templar had filed its appeal of the contract award at the request of a member of the Board.

| sIn response, Templar filed peremptory exceptions pleading the objections of no cause of action and non-joinder of necessary parties. Before these exceptions were heard, however, Thinkstream amended its petition to add claims for defamation and alleged violations of the Louisiana Unfair Trade Practices Act.

After a hearing, the trial court sustained the exceptions and granted Thinkstream fifteen days to amend its petition a second time or face dismissal, with prejudice. The trial court then granted two motions by Thinkstream, each seeking to stay the proceedings for sixty days, to allow Think-stream an opportunity to retain new counsel and amend its petition. Thinkstream never properly amended its petition; thus, on Templar’s motion, the trial court dismissed Thinkstream’s suit, with prejudice, on February 15, 2005. Thinkstream subsequently filed a motion for new trial, which was denied by the trial court. Thinkstream then appealed the matter to this court. In an unpublished opinion, another panel of this court affirmed the judgment of the trial court, which dismissed the suit against Templar, with prejudice. Thinkstream, Inc. v. Templar, Inc., 05-1968 (La.App. 1st Cir.12/28/06), 947 So.2d 847 (table), writ denied, 07-0208 (La.3/23/07), 951 So.2d 1106.

Thinkstream v. Rubin

On June 7, 2005, after the trial court had dismissed the suit against Templar, Thinkstream and Bellue filed this suit against McGlinchey, contending that McGlinchey piad defamed them by making certain allegations in the appeal to the Commissioner of the Board’s decision. On November 3, 2005, McGlinchey filed a special motion to strike the cause of action pursuant to LSA-C.C.P. art. 971, along with a peremptory exception raising the objections of peremption, prescription, no cause of action, and no right of action. These matters were set for hearing on Monday, January 23, 2006.

On Friday, January 20, 2006, Think-stream and Bellue filed a combined motion and order for leave to amend their petition to assert additional claims against McGlin-chey for abuse of process and conspiracy. The plaintiffs further requested an expedited hearing on the issue of the amendment, contending that the trial court should allow them to amend their petition prior to hearing McGlinchey’s objections and motion to strike.

At the hearing, the trial court decided that it would address the special motion to strike first. The court further determined that it would consider McGlinchey’s peremptory exception next, followed by the plaintiffs’ motion for leave to amend the petition. After considering the evidence submitted by the parties, the trial court granted the special motion to strike in open court. The court specifically found that the allegedly defamatory statements were made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, and that the statements were made in connection with an issue under consideration by a legislative, executive, or judicial body, or any other official body authorized by law. See LSA-C.C.P. art. 971(F)(1). The court further found that the plaintiffs failed to establish a probability of success on their claim. See LSA-C.C.P. art. 971(A). In determining that the plaintiffs had failed to meet their burden, the trial court concluded that the statements found in paragraph 32 of the original administrative appeal were not defamatory. In addition, the trial court determined that the plaintiffs’ cause of action was perempted pursuant to |7LSA-R.S. 9:5605 and prescribed pursuant to LSA-C.C. art. 3492. The court further determined that an amendment would not cure these problems and denied plaintiffs’ motion for leave to amend the petition.

On February 7, 2006, the trial court signed a judgment granting the special motion to strike and dismissing the plaintiffs’ suit, with prejudice. The judgment further dismissed the defendants’ peremptory exception as moot and stated that the defendants were entitled to reasonable attorney fees and costs pursuant to LSA-C.C.P. art. 971(B), in an amount to be determined by the court upon the filing of a rule to tax costs. Finally, the judgment denied the plaintiffs’ motion for leave to amend the petition. It is from this judgment that the plaintiffs have appealed.

ANALYSIS

On appeal, Thinkstream and Bellue contend that the trial court erred: (1) by applying the one year peremption rule of LSA-R.S. 9:5605 to a non-client alleging an intentional tort; (2) by finding that the case was prescribed under LSA-C.C. art. 3492; (3) by finding that the statements attributed to McGlinchey did not constitute actionable defamation; (4) by not addressing plaintiffs’ proposed amendment to the pleadings before taking up and ruling on McGlinchey’s special motion to strike under LSA-CCP. art. 971, including the request for attorney fees and costs; and (5) by finding that the plaintiffs did not make the requisite showing of a probability of success on the intentional tort claim against McGlinchey.

Special Motion to Strike

The special motion to strike is governed by LSA-CCP. art. 971, which provides:

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.
|SB. 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.
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.
E. This Article shall not apply to any enforcement action brought on behalf of the state of Louisiana by the attorney general, district attorney, or city attorney acting as a public prosecutor.
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.
(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) “Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

The granting of a special motion to strike presents a question of law. Appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Lamz v. Wells, 05-1497 (La.App. 1st Cir.6/9/06), 938 So.2d 792, 795. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Id.

| ^Louisiana Code of Civil Procedure article 971 was enacted by 1999 La. Acts, No. 734, § 1. 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.

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. Aymond v. Dupree, 05-1248 (La.App. 3rd Cir.4/12/06), 928 So.2d 721, 727, writ denied, 06-1729 (La.10/6/06), 938 So.2d 85.

Pursuant to Article 971, 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. LSA-C.C.P. art. 971(A)(1). Under the shifting burdens of proof established by the article, the mover must first establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue. If the mover satisfies this initial burden of proof, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. Aymond, 928 So.2d at 727.

In the present case, it is undisputed that the cause of action against McGlinehey arose from an act by McGlinehey in furtherance of the right of petition or free speech, as the defendants made the allegedly defamatory statements in the original appeal they filed with the Commissioner on behalf of Templar. As such, the allegedly defamatory comments were written statements made in connection with an issue under consideration or review by an executive or a judicial body, or any other official body |inauthorized by law. See LSA-C.C.P. art. 971(F)(1)(b). Once defendants met their initial burden of proof, the burden shifted to Thinkstream and Bellue to establish the probability of success on their claim against McGlinchey through the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

Defamation

A cause of action for defamation arises out of a violation of LSA-C.C. art. 2315. Defamation involves the invasion of a person’s interest in his or her reputation and good name. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 715. To maintain an action for defamation, plaintiffs have the burden of proving: (1) defamatory words; (2) unprivileged publication; (3) falsity; (4) actual or implied malice; and (5) resulting Injury. Lamz, 938 So.2d at 797. If even one of these required elements is lacking, the cause of action fails. Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, 140.

Defamatory words are those that harm the reputation of another so as to lower him in the estimation of the community or to deter others from associating with him. Lamz, 938 So.2d at 798. Words that convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Fitzgerald, 737 So.2d at 716. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Costello, 864 So.2d at 140. The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. Id.

In this matter, the trial court determined that the statements in paragraph 32 of Templar’s appeal to the Commissioner were not defamatory. Based upon our review of the record and the specific statements contained in paragraph 32, we agree with the trial court’s conclusion. Although plaintiffs insist that the statements accuse them of bribing public officials and other potentially criminal activities, our reading of the statements does not support such an interpretation. A fair reading of the statements Insupports the defendants’ position that they were attempting to obtain discovery concerning the identities of Thinkstream’s stockholders, as well as the criteria applied by the Board in awarding the contract.

Furthermore, we note that the plaintiffs failed to carry their burden of proof with regard to the malice element of a cause of action for defamation. Malice, for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the allegedly defamatory statement. See Cos tello, 864 So.2d at 143. Only when it is found that a statement has been made without reasonable grounds for believing it to be true can the person making the statement be found to be motivated by malice or ill will. Redmond v. McCool, 582 So.2d 262, 265 (La.App. 1st Cir.1991). In this matter, the evidence demonstrates that the statements made in the appeal to the Commissioner were supported by publicly available sources, including the minutes of a Board meeting and an article in the Denver Post. Moreover, McGlinchey removed the offending statements within one day after counsel for Thinkstream demanded their removal. Accordingly, we conclude that the record is devoid of any evidence of ill will or malice on the part of McGlinchey against the plaintiffs. Thus, plaintiffs did not and cannot establish a probability of success on their claim. In the absence of the establishment of a probability of success by the plaintiffs, the cause of action shall be subject to the special motion to strike. Therefore, the trial court did not err in granting the motion.

\ v?Amendment of the Petition

Plaintiffs also contend on appeal that the trial court erred in not allowing them to amend their petition prior to deciding the issue of McGlinchey’s special motion to strike. As a preliminary matter, we note that trial courts are vested with great discretion in determining the order in which they will handle matters on then-dockets. Appellate courts interfere in trial court matters such as control of a docket, case management, and determination of whether a continuance should be granted only with reluctance and in extreme cases. Perkins v. Willie, 01-0821 (La.App. 1st Cir.2/27/02), 818 So.2d 167, 169. After a review of the attendant circumstances, we find that the trial court did not abuse its discretion in its determination of the special motion to strike first.

Plaintiffs argue that they have a statutory right to amend their lawsuit to correct defects in the pleadings pursuant to LSA-C.C.P. arts. 932(A) and 934. It is true that these articles authorize a plaintiff to amend his petition when the grounds of the objections raised by the declinatory and peremptory exceptions may be removed by such an amendment However, these articles apply to declinatory and peremptory exceptions only, and they make no reference whatsoever to the special motion to strike. Because the trial court, in its discretion, chose to hear the special motion to strike before the peremptory exception, the above articles are simply not applicable. Moreover, we note that even if these articles were applicable to this matter, Articles 932(A) and 934 only require that the plaintiff be granted an opportunity to amend when such an amendment would cure the objections raised in the exceptions. The trial court specifically found that the plaintiffs’ suit was prescribed and that an amendment would not cure the objections.

The evidence in the record is clear that Bellue and Thinkstream were aware of the allegedly defamatory statements for more than one year prior to the date they filed suit against McGlinchey. On May 4, 2004, counsel for Thinkstream sent a letter to McGlinchey requesting that it remove the “unwarranted and untruthful” allegations of paragraph 32 and footnote 10 of the original appeal petition. In addition, on May 20, 2004, Bellue wrote a letter to the Commissioner concerning the “very damaging and 11ssIanderous statements about the management of Thinkstream” contained in the original appeal petition. Thus, there is no dispute that Thinkstream and Bellue were aware of the allegedly defamatory statements no later than May 20, 2004.

Nevertheless, Thinkstream and Bellue did not file suit against McGlinchey until June 7, 2005. Plaintiffs contend that the suit is timely, relying on the general rule that an action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. See Simpson v. Perry, 03-0116 (La.App. 1st Cir.7/14/04), 887 So.2d 14, 16. Plaintiffs state that they did not receive notice of the Commissioner’s decision granting the appeal until June 7, 2004; thus, they contend that this suit is timely, since it was filed within one year of that date. We disagree.

In general, the reason for the above rule requiring the termination of the underlying litigation is to allow the underlying litigation to proceed in an orderly fashion, without the issue of defamation present. Id. Another reason is that the cause of action does not arise until the party making the allegations has had the opportunity of proving the truth of the allegations in the proceedings in which they are made. Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553, 561 (1959). In this matter, however, the allegedly defamatory statements were removed on May 5, 2004, only one day after counsel for Thinkstream requested their removal. At that point, the statements were no longer a part of the underlying litigation; thus, prescription began to run on the defamation claim at that time. Accordingly, plaintiffs’ suit, filed more than one year later, was untimely pursuant to LSA-C.C. art. 3492. Furthermore, because the original suit was untimely, any proposed amendment to the suit arising out of the same | ^transaction or occurrence also would be untimely. Therefore, allowing the plaintiffs to amend their original untimely petition would serve no purpose.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiffs, Thinkstream, Inc. and Barry Bellue.

AFFIRMED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs.

|U concur in the result reached by the majority, finding the plaintiffs’ claims to be prescribed.

      . Paragraph 22 of the first amended petition raises allegations concerning the statements made in the original appeal to the Commissioner and states:
      The actions of Templar, since the original awarding of the contract, including the baseless, arbitrary, and capricious appeal, the intentional and/or negligent misrepresentations concerning Thinkstream’s financial information, the allegations in Templar’s appeal to the Division of Administration of private meetings between Thinkstream and the ICJIS Policy Board members while bid evaluations were taking place, and allegations of Thinkstream's illegal influencing of IOIS Policy Board voters by numerous methods, including bribery and stock ownership made by Templar after the original awarding of the contract, In addition to the purposeful delaying of the award until after the expiration of the practical time limitations of the federal grant, constitute defamatory actions, violations of unfair trade and practices violating the Louisiana Unfair Trade Practices Act, and intentional and negligent interference with contractual and business relations causing tremendous economic damage to Thinkstream, relating to both the awarding of this particular contract and to other law enforcement contracts.

      . On this date, Thinkstream and Bellue also filed a complaint in the federal district court for the middle district of Louisiana. In this complaint, the plaintiffs asserted claims under 42 U.S.C.A. § 1983 against various defendants, including certain members of the Board. These claims were subsequently dismissed, with prejudice, by the federal district court. Thinkstream, Inc. v. Adams, 05-844JJB (M.D.La.2006) (unpublished).

      . In the petition, plaintiffs requested that service on the defendants be held until further notice. Plaintiffs finally requested service on McGlinchey by letter dated September 1, 2005.

      . In support of the spedal motion to strike, McGlinchey relied on many of the same arguments raised in support of the peremptory exception.

      . With the proposed amendment, plaintiffs made allegations suggesting that Templar’s appeal had been filed at the suggestion of certain members of the Board. As noted above, Thinkstream made similar allegations In Its earlier suit against Templar.

      . In their brief to this court, the defendants contend that the statements made in the appeal to the Commissioner are protected by a qualified privilege. Statements made in the course of a judicial proceeding are subject to a qualified privilege if the statements are material to the proceeding and are made with probable cause and without malice. Freeman v. Cooper, 414 So.2d 355, 359 (La.1982). However, the existence of a qualified privilege is an affirmative defense that must be specially pled. See Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669, 682; LSA-C.C.P. art. 1005. Because McGlin-chey did not file an answer to the plaintiffs’ petition, the issue of qualified privilege has not yet been specially pled by the defendants or addressed by the trial court. Accordingly, that issue is not property before us at this time.

      . Plaintiffs have argued that McGlinchey was Involved in a conspiracy with members of the Board and Templar in an effort to prevent Thinkstream from receiving the contract from the Board. Although the plaintiffs attempted to introduce evidence to support this claim in the trial court and have continued to make the argument on appeal, the actions allegedly supporting the existence of the conspiracy were actions taken by Templar and certain Board members before the defendants were involved in the matter. The plaintiffs have attempted to attribute these actions to McGlinchey, but such attribution is based only on inference and innuendo. Plaintiffs have provided absolutely no evidence to support their claim that the defendants were involved in a conspiracy, if any such conspiracy existed.

      . We note that Thinkstream brought very similar defamation claims against Templar within two weeks of receipt of the Commissioner's decision granting the appeal, and that it was only when that suit was dismissed by the trial court that Thinkstream and Bellue sought to file the instant suit against McGlinchey.

      . Because we find that the matter is prescribed, we do not address the question of whether the peremptive period provided by LSA-R.S. 9:5605 is applicable to this matter.

      . Plaintiffs filed a motion for leave to amend their petition in the trial court. However, In oral argument before this court, the plaintiffs suggested that the trial court’s permission was not needed, because the defendants had not yet filed an answer at the time of the hearing. Pursuant to LSA-C.C.P. art. 1151, a plaintiff may amend his petition without leave of court at any time before the answer thereto is served. In response, defendants have contended that the plaintiffs should not be allowed to amend their petition for any reason once a special motion to strike has been filed. However, because we have found that any amendment to the petition would be untimely since the original petition is prescribed, we need not address these arguments.


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Jamie HENLY v. PHILLIPS ABITA LUMBER CO., Inc., et al.
    No. 2006 CA 1856.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 3, 2007.

      Thomas Kelffer, Sr., Covington, LA, and Phillip M. Lynch, Jr., Mandeville, LA, for Defendant & Third-Party Plaintiff/Appellant Phillips Abita Lumber Co., Inc.
    Ralph S. Hubbard, III, Lourdes Estevez Martinez, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant & Third-Party Defendant/Ap-pellee Travelers Property Casualty Co. of America.
    Before PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

| .¡Phillips Abita Lumber Company, Inc. (Abita) appeals a judgment denying its motion for partial summary judgment and granting summary judgment in favor of Travelers Property Casualty Company of America (Travelers). The judgment in favor of Travelers dismissed Abita’s claims that Travelers owed it insurance coverage and a defense for the acts alleged in the petition of Jamie Henly (Henly) against Jeffrey Bruce (Bruce) and his employer, Abita. We affirm the judgment.

BACKGROUND

According to Hedy’s petition against Bruce and Abita in this matter, she and Bruce were both employed by Abita. Bruce had recruited Henly for her position as a shipping clerk and was her immediate supervisor. Henly claims that on one occasion when she was riding to work with Bruce, he pulled off the main road, exposed himself to her, and solicited her for sexual activity. She further alleges that Bruce, a management employee, continually bothered her while both were at work at the Abita site by improper touching, solicitations, and sexual comments. When she rebuffed his unwelcome advances, he threatened her with the loss of her job, hollered at her, threw chairs, and on one occasion, pushed or kicked her in the back, forcing her forward into a wall and causing a lower back injury that eventually required surgery.

Henly claims many of these actions were witnessed by other employees of Abita and constituted assault and battery, sexual harassment, unlawful violence against women, and intentional infliction of emotional distress. She further alleges that Abita is vicariously liable for Bruce’s acts, because he was in the course and scope of his employment when these incidents occurred. Therefore, she claims Bruce and Abita are solidarity liable for her damages, including past and future medical bills, loss of enjoyment of life, emotional distress/mental anguish, loss of range of motion, future loss of wages and/or earning capacity, past lost wages due to surgery and recuperation, and other general and equitable relief.

| sHenly also claims that in addition to its vicarious liability for Bruce’s actions, Abita is individually liable for actively discouraging her from filing a workers’ compensation claim after her injury, demoting her to cashier, reducing her working hours, replacing her as shipping clerk with a male employee, and harassing her to the point that she was forced to resign. These acts form the basis of Henl/s claims of sex discrimination and retaliation for filing a workers’ compensation claim. In addition to the previously listed items of damages for Abita’s vicarious liability for Bruce’s actions, Henly seeks punitive damages, attorney fees, and costs from Abita for its independent liability.

Abita filed a third-party demand against Travelers, seeking insurance coverage under its commercial general liability policy, as well as a defense, to Henly’s claims against it and reimbursement of litigation expenses already incurred. Travelers filed an answer denying coverage and a duty to defend on the basis of exclusions in the policy, including the workers’ compensation exclusion, the “bodily injury to an employee” exclusion, the employment-related practices exclusion, and the discrimination exclusion. Abita filed a motion for partial summary judgment against Travelers, seeking a judgment declaring that Travelers owed It a duty to defend the claims asserted against it by Henly in this case, compelling Travelers to provide that defense, and awarding damages sufficient to reimburse Abita for the attorney fees and other litigation costs it had incurred in defending itself in this lawsuit. Travelers filed a cross-motion for summary judgment on both the coverage and defense issues. After a hearing, the district court granted Travelers’ motion as to both coverage and defense and denied Abita’s motion, stating in written reasons for judgment that “the Travelers policy clearly and unambiguously excludes coverage for the acts alleged in the petition of ... Henly” and “Travelers does not have a duty to defend ... [Abita] against the allegations ... [of] Henly.”

Abita appealed, claiming the district court erred in ruling that Travelers has no duty to defend it, and further erred in denying Abita’s request for reimbursement of defense costs. Abita contends it had “possible liability,” based on the allegations of Henly’s petition concerning one particular incident, and therefore, Travelers is required to provide it with a defense and pay its defense costs, including attorney fees.

| ¿APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). A summary judgment may be rendered on the issue of insurance coverage alone, although there is a genuine issue as to liability or damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied. 97-2198 (La.11/21/97), 703 So.2d 1312. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d.1180, 1183. When the issue before the court on the motion for summary judgment is one on which the party bringing the motion will bear the burden of proof at trial, the burden of showing there is no genuine issue of material fact remains with the party bringing the motion. See LSA-C.C.P. art. 966(C)(2); Buck’s Run Enterprises, Inc. v. Mapp Const., Inc., 99-3054 (La.App. 1st Cir.2/16/01), 808 So.2d 428, 431. An insurer seeking to avoid coverage through summary judgment bears the burden of proving some provision or exclusion applies to preclude coverage. See Simmons v. Weiymann, 05-1128 (La.App. 1st Cir.8/23/06), 943 So.2d 423, 425.

Insurance Policy Interpretation

An insurance policy is an agreement between the parties and should be interpreted by using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. See LSA-C.C. art.2045; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. If the | slanguage in an insurance contract is clear and explicit, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art.2046. The court should not strain to find ambiguity where none exists. Strickland v. State Farm Ins. Cos., 607 So.2d 769, 772 (La.App. 1st Cir.1992).

However, if there is ambiguity in an insurance policy, it must be resolved by construing the policy as a whole; one policy provision is not to be construed separately at the expense of disregarding other policy provisions. See LSA-C.C. art.2050; Louisiana Ins. Guar. Ass’n, 630 So.2d at 763. Ambiguity will also be resolved by ascertaining how a reasonable insurance policy purchaser would construe the clause at the time the insurance contract was entered. Breland v. Schilling, 550 So.2d 609, 610-11 (La.1989). If, after applying the other general rules of construction, an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of coverage for the insured. See LSA-C.C. art.2056; Louisiana Ins. Guar. Ass’n, 630 So.2d at 764. The determination of whether a contract is clear or ambiguous is a question of law. Huggins v. Gerry Lane Enterprises, Inc., 05-2665 (La.App. 1st Cir.11/3/06), 950 So.2d 750, 754, aff'd, 06-2816 (La.5/22/07), 957 So.2d 127.

Duty to Defend

Generally, the insurer’s obligation to defend suits against its insured is broader than its obligation to indemnify for damage claims. Yount v. Maisano, 627 So.2d 148, 153 (La.1993). The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the “eight-corners rule,” under which an insurer must look to the “four corners” of the plaintiffs petition and the “four corners” of its policy to determine whether it owes that duty. Vaughn v. Franklin, 00-0291 (LaApp. 1st Cir.3/28/01), 785 So.2d 79, 84, writ denied, 01-1551 (La.10/5/01), 798 So.2d 969. The insurer’s duty to defend suits brought against its insured is determined by the factual allegations of the injured plaintiffs petition, with the insurer being obligated to furnish a defense unless it is clear from the petition that the policy unambiguously excludes coverage. See Yount, 627 So.2d at 153. Even though a plaintiffs petition may allege numerous claims for which coverage is excluded under an | fiinsurer’s policy, a duty to defend may nonetheless exist if there is at least a single factual allegation in the petition under which coverage is not unambiguously excluded. Motorola, Inc. v. Associated Indem. Corp., 02-0716 (LaApp. 1st Cir.6/25/04), 878 So.2d 824, 836, writs denied, 04-2314, 2323, 2326, and 2327 (La.11/19/04), 888 So.2d 207, 211, and 212. Thus, assuming the factual allegations of the petition are true, if there could be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Prestage v. Clark, 97-0524 (LaApp. 1st Cir.12/28/98), 723 So.2d 1086, 1092, writ denied, 99-0234 (La.3/26/99), 739 So.2d 800. Additionally, the factual allegations of the petition are to be liberally interpreted in determining whether they set forth grounds which bring the claim within the scope of the insurer’s duty to defend the suit brought against its insured. Motorola, 878 So.2d at 836; Yount, 627 So.2d at 153.

ANALYSIS

In addition to determining that Travelers had no duty to defend Abita against Henly’s claims, the district court also concluded there was no coverage under the policy and dismissed all of Abita’s third-party claims against Travelers. Abita appealed only the duty to defend decision and did not appeal the coverage issue. Therefore, the district court’s judgment on the coverage issue is final.

In this appeal, Abita concedes that the Travelers policy unambiguously excluded coverage for all except one of Henly’s claims. However, Abita contends the policy did not unambiguously exclude coverage for the “exposing incident” that allegedly occurred while Henly was riding to work with Bruce. Abita argues that at the time of this incident, Bruce was acting within the course and scope of his employment, but Henly, who was on her way to work, was obviously not at work during this occurrence. Abita claims the allegations of assault and battery based on this incident fall within the policy coverage for bodily injury caused by an occurrence, since this incident took place within the policy period and in the coverage territory. In addition, Abita argues that since Henly was not at work when this occurred the policy exclusions do not clearly and unambiguously apply to this allegation, leaving Abita with potential liability for Bruce’s off-site actions.

17Travelers’ duty to defend the suit brought against Abita is determined by the factual allegations of Henly’s petition. Even if, as in this case, the court concludes there is no coverage available under the policy for any of the plaintiffs claims, if the petition alleges even one set of facts that, if proven to be true, would entitle the insured to coverage, then the insurer owes a duty of defense to its insured. See Yount, 627 So.2d at 153 (the court’s holding that the intentional injury exclusion applied to preclude coverage did not pre-termit the question of whether the insurer owed its insured a defense; because it was not clear from the face of the petition alone whether the resulting injuries to the plaintiff were intended by the insured or whether he knew they were substantially certain to result, the insurer did owe its insured a defense to the claims).

Accordingly, the first step in reviewing this issue is to examine the petition to see what Henly alleged concerning this particular incident. The “exposing incident” was first mentioned in several paragraphs of Henly’s first amended petition, as follows:

6.
On one occasion defendant Bruce while driving plaintiff to work, pulled off the main road and exposed himself and solicited her. Plaintiff ceased accepting rides with him and drove herself to work.
8.
Upon information and belief, some of defendant Bruce’s actions were witnessed by other employees of defendant Phillips Abita Lumber Co., Inc. All of these actions occurred at the work site during normal work hours with the exception of the exposing incident.
19.
At all times, defendant Bruce’s assaults) and battery(s) of plaintiff occurred during work time on work premises and while defendant Bruce was in the course and scope of his employment for defendant Phillips Abita Lumber Co., Inc. (with the exception of the exposure incident which occurred offsite but on the way to work).
27.
Defendant Bruce’s actions n touching, groping, pushing, exposing himself, kicking and [manhandling] plaintiff constituted the tort of assault and battery for which defendant Bruce is personally liable.
28.
As defendant Bruce was in the course and scope of his employment when engaging in these torts, defendant Phillips Abita Lumber Co., Inc. is liable in soli-do with defendant Bruce for the damages plaintiff sustained.

_b.29.

The damages plaintiff sustained as a result of the assault(s) and battery(s) for which defendants are liable in solido include but are not limited to:

(a) current and future medicals;
(b) loss of enjoyment of life;
(c) emotional distress/mental anguish;
(d) loss of range of motion;
(e) future loss of wages and/or earning capacity;
(f) lost wages due to surgery and recuperation; and
(g) other general and equitable relief.

These allegations were reiterated in Henly’s second amended petition.

The pertinent portions of the commercial general liability coverage form of the Travelers policy state the following:

Throughout this policy the words “you” and “your” refer to the Named Insured shown in the Declarations, and any other person or organization qualifying as a Named Insured under this policy. The words “we,” “us” and “our” refer to the company providing this insurance.
The word “insured” means any person or organization qualifying as such under WHO IS AN INSURED (SECTION II).
SECTION I COVERAGES
COVERAGE A. BODILY INJURY ... LIABILITY
1. Insuring agreement.
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” ... to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages.
b. This insurance applies to “bodily injury” ... only if:
(1) The “bodily injury” ... is caused by an “occurrence” that takes place In the “coverage territory”; and
(2) The “bodily injury” ... occurs during the policy period.
la2. Exclusions.
This insurance does not apply to: a. Expected or Intended Injury “Bodily injury” ... expected or intended from the standpoint of the insured.
d. Workers Compensation and Similar Laws
Any obligation of the insured under a workers compensation ... law or any similar law.
e. Employer’s Liability “Bodily Injury” to:
(1) An “employee” of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured’s business....
COVERAGE C. MEDICAL PAYMENTS
1. Insuring Agreement.
a. We will pay medical expenses as described below for “bodily injury” caused by an accident:
(1) On premises you own or rent;
(2) On ways next to premises you own or rent; or
(3) Because of your operations ... [.]
2. Exclusions.
We will not pay expenses for “bodily injury”:
a. To any insured.
b. To a person hired to do work for or on behalf of any insured
⅜ ⅜ ‡
d. To a person, whether or not an “employee” of any insured, if benefits for the “bodily injury” are payable or must be provided under a workers compensation ... law or a similar law.
* * *
g. Excluded under Coverage A.
SECTION II WHO IS AN INSURED
* * *
2. Each of the following is also an insured:
a. Your “employees,”... but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, no “employee” is an insured for:
(1) “Bodily injury” ...:
(a) To ... a co-“employee” while in the course of his or her employment or while performing duties related to the conduct of your business[.]
SECTION V DEFINITIONS
⅜ * *
3. “Bodily injury” means bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.
4. “Coverage territory” means:,
a. The United States of America-
5.“Employee” includes a “leased worker.”
12. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.

We must examine the factual allegations concerning the “exposing incident” to determine whether, assuming those facts are true, the Travelers policy unambiguously excluded coverage for this occurrence. The Insuring agreement obligates Travelers to pay any sums that Abita becomes legally obligated to pay as damages because of “bodily injury” to which the policy applies, as long as that bodily injury is caused by an occurrence that takes place within the policy period and within the coverage territory. There is no dispute that the “exposing incident” occurred within the policy period and within the coverage territory. Also, since we must accept all of Henly’s factual allegations as true, we must assume for these purposes that some kind of bodily injury was attributable to that incident.

However, the initial inquiry must be whether Abita could be legally obligated to pay damages to her as a result of that incident. Henly has alleged Abita is vicariously liable for the actions of its employee, Bruce. Vicarious liability in Louisiana is based on Louisiana Civil Code article 2320, which states, in pertinent part:

In Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

Under this article, liability extends only to the employee’s tortious conduct that is within the course and scope of the employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226. The specific inquiry in determining whether an employee is within the course and scope of his employment is whether the employee’s tortious conduct is so closely connected in time, place, and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interest. Weatherford v. Commercial Union Ins. Co., 93-0841 (La.App. 1st Cir.5/20/94), 637 So.2d 1208, 1211, aff'd 94-1793 (La.2/20/95), 650 So.2d 763. Stated another way, an employee is acting within the course and scope of his employment when the employee’s action is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the employer. Orgeron, 639 So.2d at 226-27. In LeBrane v. Lewis, the supreme court summarized some of the factors to use in this inquiry, including whether the tortious act was primarily employment rooted, whether the act was reasonably incidental to the performance of the employee’s duties, whether the act occurred on the employer’s premises, and whether it occurred during the hours of employment. See LeBrane v. Lewis, 292 So.2d 216, 218 n. 4 and 219 (La.1974). An employee may be within the course and scope of his employment, yet step out of that realm while engaging in a personal mission. Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, 510.

It is clear from Henly’s factual allegations concerning the “exposing incident” that it did not occur on Abita’s premises and did not occur during work hours. Bruce and Henly were on their way to work. An employee who is traveling from home to work or returning from work to home is generally not within the course and scope of his employment. Because an employee usually does not begin work until he reaches his employer’s premises, his going to and coming from work is generally considered outside the course of his employment unless he has a duty to perform en route. Orgeron, 639 Lp. So.2d at 227. There are no factual allegations in Henly’s petition to indicate that the drive to work included any employment-related duties for either of them. More importantly, Bruce’s actions that were the basis of Henly’s claims had nothing to do with the kind of activities he was employed to perform for Abita, and could hardly be said to have been motivated, even in part, by a purpose to serve his employer. Even if Bruce and Henly had been on an employment-related errand, Bruce clearly deviated from any such errand when he pulled off the road, exposed himself to Henly, and solicited sexual activity. Bruce’s improper sexual conduct at this time was certainly not so closely connected in time, place, and causation to his employment duties with Abita that it could be regarded as a risk of harm fairly attributable to Abita’s business. By these actions, Bruce was engaged in a purely personal mission entirely extraneous to his employment with Abita.

No matter how liberally this court interprets Henly’s factual allegations concerning this occurrence, those statements do not bring the exposing incident within the course and scope of Bruce’s employment. If Bruce was not in the course and scope of his employment when the exposing incident occurred, then Abita could not be vicariously liable under Louisiana law. See Busby v. St. Paul Ins. Co., 95-2128 (La.App. 1st Cir.5/10/96), 673 So.2d 320, 331, unit denied, 96-1519 (La.9/20/96), 679 So.2d 443. And unless Abita could have been liable to pay damages for this particular interaction between Bruce and Henly, Travelers could not become obligated to pay under the insuring agreement of its policy.

We also reject Abita’s argument that there was potential coverage under the policy because Henly alleged that when the exposing incident occurred, she was outside the course and scope of her employment, because she was on the way to work, while Bruce was acting within the course and scope of his employment when all of the sexual improprieties, including this incident, occurred. Henly’s factual allegations concerning the exposing incident place them both in the same activity of riding to work, therefore, either both were within the course and scope of their employment or both were outside of that status. There are no factual statements that would justify any differentiation between them during the exposing incident or any of the other incidents that occurred 11sat the Abita work site and during working hours. Based on the facts provided in Henly’s petition, neither Henly nor Bruce were in the course and scope of their employment during the exposing incident; during the other actions, they were both at work and were in the course and scope of their employment with Abita. It is the allegations of fact contained in the petition, and not the conclusions, that determine the obligation to defend. Duhon v. Nitrogen Pumping & Coiled Tubing Specialists, Inc., 611 So.2d 158, 160-61 (La.App. 3rd Cir.1992). Accordingly, we find no legal error in the district court’s decision to deny Abita’s motion for partial summary judgment on the duty to defend issue and to grant Travelers’ motion for summary judgment on both the coverage and defense issues.

CONCLUSION

For the stated reasons, we affirm the judgment of May 8, 2006, dismissing all coverage and defense claims against Travelers. Costs of this appeal are assessed to Abita.

AFFIRMED.

      . Henly stated that after this incident, she ceased accepting rides with Bruce.

      . Bruce was eventually fired by Abita.

      . Abita is the only named insured under the policy.

      . In addition to these exclusions, an endorsement entitled "Employment-Related Practices Exclusion” excluded coverage for bodily injury to any person arising out of the termination of that person’s employment or employment-related practices, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, or discrimination directed at that person. Another endorsement entitled "Exclusion— Discrimination” excluded coverage for bodily Injury resulting from or as a consequence of discrimination, whether intentional or unintentional, based upon, among other things, a person’s sex.


author: PETERS, Judge.

text:
    Joseph H. FONTENOT, Jr. v. WAL-MART.
    Nos. WCM 07-1082, WCA 07-1152.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      James Steven Gates, Morrow, Gates & Morrow, L.L.C., Opelousas, LA, for Plaintiff/Appellant, Joseph H. Fontenot, Jr.
    Charles Martin Kreamer, Sr., Allen & Gooch, A Law Corporation Lafayette, LA, for Defendani/Appellee, Wal-Mart.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, Judge.

hThe Appellee, Wal-Mart, moves to have this case remanded to the trial court so that Appellee may have a chance to traverse the right of Appellant, Joseph H. Fontenot, Jr., to proceed in forma pauper-is. For the reasons given below, we grant the motion to remand.

This case involves a worker’s compensation claim in which judgment was rendered on January 24, 2007. Appellant filed a motion for new trial which was denied by the trial court on April 17, 2007. On June 22, 2007, the trial court granted Appellant’s motion to file a devolutive appeal, and on July 6, 2007, the trial court granted Appellant’s motion to proceed with his appeal in forma pauperis.

Appellee asserts that because Appellant did not file his pauper application until he took his appeal, Appellee did not get an opportunity to traverse Appellant’s right to proceed in forma pauperis. Appellee also asserts that Appellant is not entitled to proceed with his appeal in forma pau-peris because Appellant has substantial assets and because Appellant’s monthly income exceeds his monthly expenses. Therefore, Appellee seeks to have this court remand this case to the Worker’s Compensation Court, District 4, so that Appellee can traverse Appellant’s right to proceed in forma pauperis.

This court has held:

Once the trial court signs an order for a devolutive appeal, it loses jurisdiction to entertain a motion to traverse the pauper status of a party. La.Code Civ.P. art.2088. Therefore, the defendant’s appropriate remedy is to seek a remand of this appeal by this court to the trial court for a hearing on a motion to traverse.

Brack v. Ferrington, 05-13 (La.App. 3 Cir. 2/16/05), 895 So.2d 617, 618.

Accordingly, in the instant case, when the worker’s compensation court granted Appellant’s motion for devolutive appeal on June 22, 2007, it lost jurisdiction to entertain a motion to traverse Appellant’s pauper status. Because Appellant did not proceed in forma pauperis in the trial court proceedings, this is not a situation in which Appellee had ample opportunity to traverse the Appellant’s pauper status before the appeal order was granted. See McKellar v. Mason, 154 So.2d 237 (La. App. 4 Cir.1963). As such, we find that Appellee should be granted an opportunity to have its motion to ^traverse heard. Therefore, we remand this matter to the Worker’s Compensation Court, District 4, for a hearing on Appellee’s motion to traverse Appellant’s right to proceed informa pauperis.

REMANDED.


author: McClendon, j. GUIDRY, J. HUGHES, J.,

text:
    Wendell J. CALLAHAN, Jr. and Jerome M. Cousan v. CIRCUIT CITY STORES, INC., Employees A, B, and C of Circuit City Stores, Inc., and XYZ Insurance Company.
    No. 2006 CA 1663.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 10, 2007.
    Rehearing Denied Nov. 15, 2007.

      Emery Norton Voorhies, Maurice Le-Gardeur, Covington, LA, for Plaintiffs/Ap-pellees, Wendell J. Callahan, Jr. and Jerome M. Cousan.
    Robert W. Barton, Matthew L. Mullins, Baton Rouge, LA, for Defendant/Appellant Circuit City Stores, Inc.
    Before PARRO, GUIDRY, GAIDRY, McClendon, and hughes, jj.
   McClendon, j.

I ^Defendant, Circuit City Stores, Inc. (Circuit City), appeals the trial court’s judgment in favor of plaintiffs, Wendell J. Callahan, Jr. (Callahan) and Jerome M. Cousan (Cousan). For the reasons that follow, we reverse and render.

FACTS AND PROCEDURAL HISTORY

On October 26, 2003, Michael Morris, manager of the Circuit City Store in Cov-ington, Louisiana, observed two African-American men leaving the store under suspicious circumstances. Morris followed them out of the store and around the side of the building. Another Circuit City employee who was in his vehicle in the parking lot, Jonathan Hines, saw Morris pursuing the two men and drove up to Morris. After speaking with Morris, Hines began to follow the two men in Hines’ vehicle, and contacted the St. Tammany Parish Sheriffs Office on his cell phone to report that he was following two shoplifting suspects. Hines saw the two men dump approximately twenty PlayStation 2 games outside of a Kentucky Fried Chicken restaurant and stopped to retrieve the games, during which time he lost sight of the two men. However, Hines saw the two men flee in the general direction of the nearby Wal-Mart and Hibernia Bank. After retrieving the games, Hines continued north along a service road on the west side of the Wal-Mart parking lot. While stopped at a stop sign, he noticed two individuals driving down a road on the north side of the Wal-Mart parking lot. It appeared to Hines that the driver was leaning back and covering his face, and the passenger was changing his shirt. Because Hines did not actually see the men he had been pursuing get into a car, he quickly scanned the general area. After failing to see anyone on foot, Hines followed the vehicle, advised the dispatcher with the St. Tammany Parish Sheriffs Office, with whom he had been in constant contact since he began following the two men, and reported the license number of the car. Ultimately, the car being driven by Callahan, in which Cousan was a passenger, was pulled over by St. [3Tammany Parish Sheriffs Officers on Highway 190 in Covington. Hines, who was still following the vehicle, stopped at the scene. Because he admittedly could not positively identify the suspects, he called Morris. Morris came to the scene and identified Callahan and Cousan as the men who had stolen the games from the Circuit City Store. At the time Callahan and Cousan were pulled over by the sheriffs office, approximately fifteen minutes after the shoplifters fled Circuit City, Callahan was wearing a white North Carolina t-shirt, baseball cap, and blue jean shorts, and Cousan was wearing a Wendy’s uniform, consisting of black pants and a dark green shirt, and had an afro hairstyle. Callahan and Cousan were placed under arrest and subsequently charged with theft by shoplifting. On March 3, 2004, however, the charges were nolle prossed and dismissed.

On April 27, 2004, Callahan and Cousan filed suit against Circuit City, the employees who allegedly misidentified the plaintiffs as perpetrators of a crime, and Circuit City’s insurer. Plaintiffs sought damages for defamation, false arrest, false imprisonment, and malicious prosecution. Circuit City answered the petition asserting several affirmative defenses, including qualified immunity for those who report possible criminal activity.

Following the trial, the trial court determined that the employees of Circuit City did not act with malice, but rather, were merely negligent in their identification of Callahan and Cousan as the perpetrators of the shoplifting. Despite that finding, the trial court apparently believed that the privilege had been abused, and found in favor of the plaintiffs, Callahan and Cou-san. Judgment was rendered awarding Callahan $7,500.00 in general damages and $1,583.60 in [4special damages and awarding Cousan $12,000.00 in general damages and $1,178.75 in special damages.

Circuit City now appeals. In its brief, Circuit City asserted that the trial court erred in: (1) granting judgment in favor of Callahan and Cousan despite the factual finding that Circuit City acted without malice, which finding entitles Circuit City to qualified immunity and judgment in its favor as a matter of law; (2) awarding unreasonable and excessive general damages to Callahan and Cousan; and (3) awarding attorney’s fees to Callahan and Cousan when such fees are not authorized by statute or contract.

APPLICABLE LEGAL PRECEPTS

Liability and Qualified Immunity

As stated above, all of Callahan and Cousan’s claims for damages are based on the misidentification of them as perpetrators of a shoplifting at the Circuit City-store in Covington. The Louisiana Supreme Court in Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 19 (La.7/10/06), 935 So.2d 669, 683, reiterated the longstanding practice of the courts of this state of recognizing that the public has an interest in bringing possible criminal activity to the attention of the proper authorities, and, on that basis, extending a qualified privilege to such reports made in good faith. Specifically, Kennedy, 2005-1418 at p. 19, 935 So.2d at 683, provided the following policy reasons as support for the extension of such a privilege:

It would be self-defeating for society to impose civil liability on a citizen for inaccurately reporting criminal conduct with no intent to mislead. If the risks to the citizen are too high, a fertile field for criminal suppression will have disappeared.
In other words, the qualified or conditional privilege extended to communication of alleged wrongful acts to the officials authorized to protect the public from such acts is founded on a strong public policy consideration: vital to our system of justice is that there be the ability to communicate to police officers the alleged wrongful acts of others without fear of civil action for honest mistakes.

|fiThe Kennedy court then outlined the two-step process for determining whether a conditional privilege exists. In the first step, it must be determined whether the attending circumstances of a communication occasion a qualified privilege. If so, the plaintiff must show in the second step that the privilege has been abused. A determination of whether the privilege has been abused requires an examination of the grounds for abuse, that is, malice or lack of good faith. Kennedy, 05-1418 at p. 18, 935 So.2d at 682. The court also noted that the first step is generally determined by the court as a matter of law, but the second step of determining abuse of a conditional privilege is generally a fact question for the jury, unless only one conclusion can be drawn from the evidence. Kennedy, 05-1418 at p. 18, 935 So.2d at 682.

The practical effect of the defendant’s assertion of the conditional or qualified privilege is to rebut the plaintiffs allegations of malice, or reckless disregard, and to place the burden of proof on the plaintiff to establish abuse of the asserted privilege. Kennedy, 05-1418 at p. 20, 935 So.2d at 683. To establish an abuse of the privilege, a plaintiff must demonstrate that the person communicating alleged wrongful acts to an official, one authorized to protect the public from such acts, either knows the matter to be false, which constitutes malice, or acts with a reckless disregard for the truth. Kennedy, 05-1418 at pp. 22-23, 935 So.2d at 684-685.

To prove reckless disregard, the plaintiff must show that the communication was made despite the reporter’s belief that it was probably false. Proof of gross negligence in the communication of a false statement is insufficient to prove reckless disregard. Kennedy, 05-1418 at pp. 28-29, 935 So.2d at 688. The court in Kennedy explained that conduct constituting reckless disregard is typically found where a story is fabricated by the defendant, is the product of hisj^imagination, or is so inherently improbable that only a reckless man would have communicated it. Kennedy, 05-1418 at p. 30, 935 So.2d at 689. Mere negligence as to falsity is not sufficient to prove abuse of the privilege, and the failure to investigate a matter fully before contacting police also does not present a jury question on whether a statement was communicated with reckless disregard for the truth. Kennedy, 05-1418 at p. 31, 935 So .2d at 689.

In support of this heightened standard, the court stated:

[A]doption of the knowing falsity or reckless disregard for the truth standard of abuse in this case, which involves a report to law enforcement officers of suspected criminal activity, strikes a necessary and appropriate balance between a person’s interest in protecting his or her reputation and the need to encourage individuals to report suspected criminal activity to the proper authorities -without fear of being exposed to civil liability for honest mistakes. Unless such protection is extended, fear of being exposed to civil liability could discourage individuals from alerting police to suspicious activity, thereby enabling criminals to escape detection and endangering other potential victims. Individuals who engage in behavior beneficial to society should not be penalized by facing exposure to civil liability for mistakes in judgment attributable to simple negligence.

Kennedy, 05-1418 at p. 24, 935 So.2d at 685-86.

ANALYSIS

The authorities were in contact with Hines during the chase, and were aware that Hines had stopped to collect the merchandise. The deputy wrote in his report that Hines, after collecting the merchandise, “proceeded to where he had last seen the subjects.... ” Thus, the authorities knew or should have known that Hines briefly lost sight of the suspects. Hines never claimed that he saw the faces of the suspects or that he continually had the suspects in his sight. Because he could not identify the men after the car was stopped by the deputies, he called Morris.

At the trial on March 16, 2006, Morris stated that he got a good look at the face of one male, but could not see the face of the other. Morris testified that the man whose face he saw was wearing a white t-shirt and long blue jeans. Although |7the other man was also wearing long blue jeans, he had on a dark colored t-shirt. Morris also testified that both men had short hairstyles. Admittedly, Morris primarily based his identification of Cousan on the fact that he was with Callahan, the man whose face Morris believed he had seen.

In his report to the deputy on the scene of the arrest, Morris included a brief description of the clothing worn by the two males Morris observed in the store. He did not attempt to hide any discrepancies in the descriptions. Thus, the deputy had sufficient information to realize that the description of the clothing worn by the suspects in the store differed from that worn by the plaintiffs when they were stopped and arrested by the deputies.

After a thorough review of the record, especially in light of the statements made by Morris and Hines to deputies, we see no error in the trial court’s finding that defendants’ actions constituted mere negligence, without malice. Specifically on the absence of malice question, the record contains no evidence that, at the time of the communication, the defendants knew that their report to the police was false. Thus, plaintiffs failed in their burden to show abuse of the privilege based on a finding of malice.

In addition, the record does not establish that the defendants’ communications to the proper authorities were fabricated, a product of then-imagination, or “so inherently improbable that only a reckless man would have put it in circulation.” Kennedy, 05-1418 at p. 30, 935 So.2d at 689. Thus, the plaintiffs’ failed in their burden to prove that defendants acted with reckless disregard for the truth and abused their privilege on that basis.

However, despite the trial court’s finding that the defendants’ misidentifieation was merely negligent, and the record’s lack of support to establish an abuse of the asserted conditional privilege, the trial court committed reversible error by failing to apply the privilege. Even if the trial court had found |sgross negligence in the communications, and the record supported that finding, such a finding would not be sufficient to prove an abuse of the privilege asserted by defendants for reporting the possibility of criminal behavior. See Kennedy, 05-1418 at p. 31, 935 So.2d at 689. Clearly, gross negligence is not within the tightly woven definition of reckless disregard adopted by Kennedy. See Kennedy, 05-1418 at p. 30, 935 So.2d at 689.

CONCLUSION

For the foregoing reasons, we hold that the defendants’ negligent communications were conditionally privileged, we reverse the judgment of the trial court, and we dismiss the suit against the defendants. The costs of the trial and appeal are to be borne by the appellees, Wendell J. Callahan, Jr. and Jerome M. Cousan.

REVERSED AND RENDERED.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.

dissenting.

1(While I agree with the majority that Kennedy is dispositive of the matter before us, there are several key distinctions between Kennedy and the instant case. First, Kennedy was decided on review of a motion for summary judgment, whereas in the instant case, we have a fully developed trial record from which to determine the facts. Additionally, in Kennedy the defendants fully disclosed all of the known facts regarding the suspected wrongful acts in making a report to law enforcement, unlike the instant case where there is a mis-identifieation of an alleged perpetrator and an alleged failure to disclose the suspect basis of that identification.

At trial Morris testified that he saw two African-American males run into a cardboard merchandiser in the front of the store and knock some movies down. When the men attempted to pick up the movies, Morris noticed that they could not bend at the waist or bend their legs. Morris stated that he got a good look at the face of one male, but could not see the face of the other. Morris indicated that the man whose face he saw was wearing a white t-shirt and long blue jeans; the other man was also wearing long blue jeans, but had on a dark colored t-shirt. Morris also indicated that both men had short hairstyles. Further, Morris stated that when | ahe followed the two men from the store, they had difficulty walking because it appeared they had merchandise stuffed down the legs of their pants.

At the time Callahan and Cousan were pulled over by the sheriffs office, which was only approximately fifteen minutes from the time the shoplifters fled Circuit City, Callahan was wearing a white North Carolina t-shirt, baseball cap, and blue jean shorts and Cousan was wearing a Wendy’s uniform, consisting of black pants and a dark green shirt, and had a distinctive afro hairstyle. Despite this marked difference in appearance, and despite the fact that Morris never actually saw the second man’s face, he positively identified Callahan and Cousan as the perpetrators of the shoplifting at Circuit City. Additionally, Morris testified that the main basis for his identification of Cousan was the fact that he was with Callahan. However, more importantly, Morris neglected to provide the sheriffs officers with any of this information so that they could perform their own further independent investigation of the facts prior to concluding there existed probable cause to arrest Callahan and Cousan. Because his positive identifications were so inherently improbable under the circumstances, Morris was clearly reckless in communicating them to the sheriffs officers at the scene without further disclosure.

Additionally, with regard to Hines, he was not in the Circuit Gity store when the alleged shoplifting took place and clearly stated at trial that he never saw the faces of the men he followed from the area of the store. Further, when Hines stopped to retrieve the video games, he admittedly lost sight of the two men as they ran across the median toward the Wal-Mart shopping center. Hines proceeded to the Wal-Mart parking lot, noticed a vehicle leaving the parking lot, but continued to look for the individuals on foot. When Hines did riot see the men he had been chasing, he proceeded to follow and report Callahan and Cousan’s vehicle simply because he saw it leave the parking lot. Despite the break in his chase and his ^admitted inability to identify the faces of the perpetrators of the shoplifting, Hines nevertheless reported Callahan and Cou-san’s car to the sheriffs office as containing the shoplifting suspects. In so doing, he failed to disclose at that time the above circumstances, which could have been evaluated by the sheriffs officers in determining whether there existed a lawful basis to stop and arrest Callahan and Cousan. Hines admitted that he had reasonable doubt that these were the same men that he had been chasing, yet despite that doubt, he gave the sheriffs office the license plate number of Callahan and Cou-san’s car. Accordingly, Hines clearly acted with reckless disregard in reporting Callahan and Cousan’s car to the sheriffs office as containing the suspects of the shoplifting.

Therefore, while the circumstances of the communication occasion a qualified privilege, namely the reporting of criminal activity and the identification of suspected criminals, Callahan and Cousan have clearly shown that under the specific facts of this case Circuit City abused that privilege. The record establishes that based on the circumstances known by both Morris and Hines, which were not shared with the sheriffs officers, only a reckless man would have given the statements they gave. Under the particular facts of this case, Circuit City clearly abused its privilege. Accordingly, I respectfully dissent from the majority’s opinion.

HUGHES, J.,

dissenting.

hit is respectfully submitted that a distinction should be drawn between false statements that send innocent people to jail, and mere name calling, and that a gross negligence standard should be used to analyze the former.

We may all agree that it’s a good thing for citizens to report suspicious activity to the police without fear of civil litigation. By taking criminals off the streets and setting an example we prevent innocent people from suffering. But what happens when reports to the police cause innocent people to suffer? What happens when innocent people are handcuffed, taken to jail, and lose their jobs? Is it “modern” thought that it’s better to punish an occasional innocent man than to allow the guilty to slip through the net?

In Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 (La.2006), the supreme court, in the context of a “defamation” claim, extended to the privilege for the communication of alleged wrongful acts to an official authorized to protect the public from such acts the standard that to prove abuse of the privilege a plaintiff must show knowledge or reckless disregard as to the falsity of the offending speech, as set forth in Trentecosta v. Beck, 703 So.2d 552 (La.1997)

[aYet Trentecosta involved a public official plaintiff in a pure defamation context. In Kennedy and in the instant case, we are dealing with private individuals who went to jail as a result of the false communication. This is not Oscar Wilde being called a name. This is sticks and stones, actual physical loss of liberty because of a false statement. The false statement, privileged generally to protect the innocent from potential suffering, thus causes actual suffering to the innocent.

By what standard is this privilege to be measured? As the Kennedy court acknowledged, a state’s interest in compensating injury to individuals is greater in the case of private individuals than for public officials and public figures, because private individuals characteristically have less access to channels of effective communication to counteract false statements.

The supreme court in Kennedy found that for a harmed plaintiff to overcome the privilege, or show that the privilege had been abused, the plaintiff would be held to an “actual malice” standard; that is, that the false statement was made with knowing falsity or reckless disregard for the truth. The supreme court went on the hold that even proof of gross negligence would be insufficient to prove reckless disregard, citing Davis v. Borskey, 660 So.2d 17 (La.1995) and Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991).

Again, however, the pronouncement in Davis v. Borskey involves a public official, and is dicta. (“Even if a public official plaintiff demonstrates that a defendant was grossly negligent ... ”)(emphasis supplied). Likewise, Masson involved a public figure. The Court held the public plaintiff could recover only by showing “actual malice,” not “mere negligence.” The term “gross negligence” was not addressed.

It is respectfully submitted that the law applied to a literary or political dust-up is Procrustean when applied to an innocent private individual who |aends up in jail as the result of a false statement. Gross negligence should not be excluded from the analysis when loss of liberty results. “Reckless” by definition does not rise to the level of intentional or knowing behavior. Supreme Court cases that included “reckless disregard” to water down the harsh actual malice standard should not be used to raise the bar for private individuals who suffer actual, physical damage.

The Kennedy court also acknowledged that the issue of whether a conditional privilege has been abused is generally a fact question for the jury or finder of fact.

In Kennedy a late-night fast food establishment especially geared up to take in as much cash as possible failed to recognize legal tender of the United States because the picture of Benjamin Franklin was “small”, and given these doubts did not have the commonly used special pen to simply test the bill, which is exactly what the sheriffs office did in order to release plaintiff from custody. Instead, they shot from the hip and immediately called the police.

While we certainly want to excuse good faith, honest mistakes in reporting crimes, a more flexible justice would allow the issue of gross negligence to be considered by the fact finder when an actual loss of liberty occurs. False statements that send the innocent to jail should be scrutinized more closely than mere name calling, even while recognizing and protecting the privilege for reports to the police. A constitutionally based conditional or qualified privilege becomes meaningless when it results in the loss of the ultimate constitutional right, liberty. There should be no hesitation to call the police, but there should be some thought.

In the instant case I would affirm the findings of the trial court after a full trial on the merits for the reasons set forth by Judge Guidry in his dissent, and therefore I respectfully dissent.

      . The employees referenced in the petition were Morris, Hines, and Brad Adams, the individual who drove Morris to the scene of the arrest.

      . Callahan and Cousan specified additional items of general and special damages, some of which included attorney fees related to the defense and expungement of criminal charges, costs of arrest, and cost of recovering an impounded vehicle.

      . We note that the Kennedy case was decided after the trial court signed the judgment in the instant case. However, neither party disputes that Kennedy is applicable to the instant appeal. Further, we note that an appellate court is bound to adjudge a case before it in accordance with the applicable law existing at the time of its decision. Segura v. Frank, 93-1271, pp. 15-16 (La. 1/14/94), 630 So.2d 714, 725, cert. denied, sub nom., Allstate Insurance Co. v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed2d 887 (1994). Even before Kennedy, plaintiffs were required to prove malice as part of their prima facie case. See Kennedy, 05-1418 at p. 4, 935 So.2d at 674; O’Conner v. Hammond Police Dept., 439 So.2d 558, 561 (La.App. 1 Cir. 1983); Keppard v. AFC Enterprises, Inc., 00-2474, p. 7 (La.App. 4 Cir. 11/28/01), 802 So.2d 959, 965.