author: HIGGINBOTHAM, J.

text:
    Felton GALLIANO v. CB & I, LLC and Broadspire Services, LLC
    NO. 2018 CA 0844
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 10, 2019
    Kiana M. Mitchell, Craig B. Mitchell, David M. Williams, New Orleans, LA, Attorneys for Claimant-Appellant, Felton Galliano
    John Rabalais, Janice Unland, Matthew Crumhorn, Covington, LA, Attorneys for Defendant-Appellee, CB & I, LLC
    BEFORE: McCLENDON, WELCH, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Claimant-employee appealed from the decision of the Office of Workers' Compensation, granting summary judgment in favor of his employer and finding the employee's workers' compensation benefits were forfeited for his failure to answer truthfully his employer's questions concerning prior injuries, and terminating the employee's benefits pursuant to La. R.S. 23:1208.1.

FACTS AND PROCEDURAL HISTORY

On May 16, 2016, claimant, Felton Galliano, was hired by CB & I, as an electrician's helper. In completing the paperwork for his employment, Mr. Galliano filled out the Louisiana Office of Workers' Compensation Second Injury Board Knowledge Questionnaire (SIF questionnaire). The SIF questionnaire is used to provide CB & I with knowledge about any pre-existing medical condition or disability of Mr. Galliano which might entitle CB & I to reimbursement from the Louisiana Workers' Compensation Second Injury Board in the event Mr. Galliano suffers an on-the-job injury.

On July 29, 2016, while working for CB & I, Mr. Galliano was installing cable. While picking up the slack in the cable, he felt a pain in his back that radiated into his groin, buttocks, and down his right leg. Initially, CB & I accepted Mr. Galliano's workers' compensation claim from the July 29, 2016 accident as compensable and paid for Mr. Galliano's treatment. However, after an investigation into Mr. Galliano's claims, wherein CB & I asserts it discovered that Mr. Galliano failed to answer truthfully questions about prior injuries on the SIF questionnaire, CB & I terminated his benefits. CB & I notified Mr. Galliano that his benefits were being terminated on February 10, 2017.

Thereafter, on June 13, 2017, Mr. Galliano filed a Disputed Claim for Compensation with the Office of Workers' Compensation against CB & I. CB & I answered contending that Mr. Galliano forfeited his rights to workers' compensation benefits of any kind as a result of his failure to truthfully answer questions regarding prior similar injuries, disabilities, or other medical conditions in direct violation of La. R.S. 23:2801.1. CB & I also filed a reconventional demand seeking restitution for all expenses and benefits it incurred.

On November 29, 2017, CB & I filed a motion for summary judgment contending that there are no genuine issues of material fact with respect to whether Mr. Galliano forfeited his right to workers' compensation benefits as a result of his failure to truthfully answer questions in violation of La. R.S. 23:1208.1. In support of its motion for summary judgment, CB & I attached, among other items: (1) Mr. Galliano's disputed claim for compensation (exhibit A); (2) Mr. Galliano's certified personnel records from his time at CB & I and his prior employers (exhibits B and H); (3) Mr. Galliano's certified medical records (exhibits D and E); (3) Mr. Galliano's deposition (exhibit F); (4) the medical opinion of Dr. Alan Schroeder (exhibit I); and (5) Dr. Schroeder's deposition (exhibit J). The deposition of Mr. Galliano, exhibit F, listed three exhibits in the index that included the SIF questionnaire. However, the documents were not attached to the deposition.

In opposition to CB & I's motion for summary judgment, Mr. Galliano objected to the introduction of exhibits B and H, his personnel records from CB & I and prior employers. Mr. Galliano pointed out that neither of the exhibits qualified as pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, or admissions as required by La. Code Civ. P. art. 966(A)(4).

CB & I's motion for summary judgment came before the Workers' Compensation Judge (WCJ) on January 8, 2018. During the hearing, the WCJ excluded exhibits B and H, finding that the record certification was not the same as an affidavit, and therefore, not proper summary judgment evidence under La. Code Civ. P. art. 966.

Also, on the day of the hearing, CB & I's attorney acknowledged that three documents, including the SIF questionnaire, were inadvertently left off of Mr. Galliano's deposition by his office, and he asked the court to supplement exhibit F with the documents. Additionally, CB & I offered into evidence on the day of the hearing the affidavit of Blake Alphonso, the attorney who took Mr. Galliano's deposition, explaining why the SIF questionnaire was not attached to the original motion for summary judgment. Mr. Galliano objected, pointing out that La. Code Civ. P. art. 966 does not allow for filing additional documents on the day of the hearing. The trial court left the record open for Mr. Galliano's attorney to review the supplementation to determine if he saw the documents at the deposition. In reviewing the documents, Mr. Galliano's attorney did not contest the authenticity of the documents, but continued to object based on La. Code Civ. P. art. 966. In deciding to allow admission of the exhibits as a supplement to exhibit F, the WCJ pointed out that "there is no prejudice to the opposing side" because Mr. Galliano had a copy of the SIF questionnaire, he was part of the deposition, and the SIF questionnaire was included as part of exhibit B, which was attached to CB & I's motion for summary judgment.

After the hearing, the WCJ signed a judgment on April 9, 2018, granting CB & I's motion for summary judgment as well as CB & I's reconventional demand. It is from this judgment that Mr. Galliano appeals.

STANDARD OF REVIEW

When reviewing summary judgments, appellate courts conduct a de novo review of the evidence, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1st Cir. 8/11/08), 993 So.2d 725, 729-30. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). The burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. The Shaw Group v. Kulick, 2004-0697 (La. App. 1st Cir. 4/8/05), 915 So.2d 796, 800, writ denied, 2005-1205 (La. 11/28/05), 916 So.2d 148.

Louisiana Revised Statutes 23:1208.1 provides:

Nothing in this Title shall prohibit an employer from inquiring about previous injuries, disabilities, or other medical conditions and the employee shall answer truthfully; failure to answer truthfully shall result in the employee's forfeiture of benefits under this Chapter, provided said failure to answer directly relates to the medical condition for which a claim for benefits is made or affects the employer's ability to receive reimbursement from the second injury fund. This Section shall not be enforceable unless the written form on which the inquiries about previous medical conditions are made contains a notice advising the employee that his failure to answer truthfully may result in his forfeiture of worker's compensation benefits under R.S. 23:1208.1. Such notice shall be prominently displayed in bold faced block lettering of no less than ten point type.

Thus, La. R.S. 23:1208.1 provides for forfeiture under narrow circumstances: (1) there must be an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute. Wise v. J.E. Merit Constructors, Inc., 97-0684 (La. 1/21/98), 707 So.2d 1214, 1218. An employer has the burden of proving each element within the statute. The lack of any one of the elements is fatal to an employer's avoidance of liability. Wise, 707 So.2d at 1218. Because forfeiture is a harsh remedy, statutory forfeiture provisions such as La. R.S. 23:1208.1 must be strictly construed. Nabors Drilling USA v. Davis, 2003-0136 (La. 10/21/03), 857 So.2d 407, 414.

LAW AND ANALYSIS

In his third assignment of error, Mr. Galliano contends that the WCJ erred in allowing CB & I to submit, despite his objection, additional summary judgment evidence on the day of the hearing. Louisiana Code of Civil Procedure article 966(B) provides, in pertinent part:

Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.

Louisiana Code of Civil Procedure article 966(D)(2) provides, in pertinent Part: "The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made."

The language of La. Code Civ. P. art. 966(B)(1), which states, "[u]nless extended by the court and agreed to by all of the parties,... [a] motion for summary judgment and all documents in support of the motion shall be filed...not less than sixty-five days prior to trial," is mandatory. (Emphasis added.) Here, it is undisputed that CB & I did not attach the SIF questionnaire to admissible summary judgment evidence. The SIF questionnaire, as a supplement to exhibit F, and Mr. Alphonso's affidavit were not introduced until the day of the hearing, and Mr. Galliano objected to the introduction of the supplement and the affidavit. Therefore, although we acknowledge that the WCJ gave thorough and thoughtful reasons for admitting the documents, the article does not leave discretion to the WCJ if the mandatory timeliness requirements of the article are not met. Thus, we are confined to conclude that the WCJ erred in allowing CB & I to supplement exhibit F with the SIF questionnaire and in allowing the introduction of Mr. Alphonso's affidavit on the day of the hearing.

Without the SIF questionnaire, which is the basis of CB & I's claim that Mr. Galliano failed to truthfully answer questions regarding prior similar injuries and is necessary for CB & I to meet its burden of proving an untruthful statement by Mr. Galliano under La. R.S. 23:1201.1, we find genuine issues of material fact remain, and summary judgment was not appropriate in this case.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court granting summary judgment in favor of CB & I and remand the matter back to the Office of Workers' Compensation for further proceedings.

REVERSED AND REMANDED.

McClendon, J. concurs.

      There was no dispute that the SIF questionnaire was included in exhibit B.

      Louisiana Civil Procedure article 5053 provides:
      Words and phrases are to be read in their context, and are to be construed according to the common and approved usage of the language employed.
      The word "shall" is mandatory, and the word "may" is permissive.


source: Caselaw Access Project

author: Welch, J.

license: Public Domain

text:
    Sally DOBYNS v. UNIVERSITY OF LOUISIANA SYSTEM, University of Louisiana at Lafayette
    2018 CA 0811
    Court of Appeal of Louisiana, First Circuit.
    JUDGMENT RENDERED: APRIL 12, 2019 Rehearing Denied May 8, 2019
    Jeffrey M. Landry, Attorney General, Baton Rouge, Louisiana, Patrick B. McIntire, Stephen J. Oats, Michael L. Barras, Special Assistant Attorneys General, Lafayette, Louisiana, Attorneys for Appellant Defendant-The Board of Supervisors for the University of Louisiana System
    Jill L. Craft, Baton Rouge, Louisiana, Attorney for Appellee Plaintiff-Dr. Sally Dobyns
    Before: Welch, Chutz, AND Lanier, JJ.
   Welch, J.

This action commenced with a suit for damages filed by the plaintiff, Dr. Sally Dobyns, against her former employer and the defendant herein, the Board of Supervisors for the University of Louisiana System on behalf of The University of Louisiana at Lafayette (the "Board"), wherein Dr. Dobyns alleged disability-based harassment and denial of accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 -11217, and the Louisiana Employment Discrimination Law ("LEDL"), La. R.S. 23:301 et seq. , and retaliation in violation of the ADA and the Louisiana whistleblower statute, La. R.S. 23:967. Following a jury trial, the jury rendered its verdict in favor of Dr. Dobyns and against the Board on her retaliation claim and awarded damages to Dr. Dobyns in the amount of $ 25,000.00. In this appeal, the Board challenges the trial court's September 18, 2017 judgment rendered in accordance with the jury's verdict. For the following reasons, we affirm.

In a related, pending appeal-2018 CA 0488-Dr. Dobyns challenges the trial court's ruling that granted the Board's motion to dismiss her claim for attorney's fees with prejudice.

FACTS AND PROCEDURAL HISTORY

In August 1992, Dr. Dobyns was hired as an Assistant Professor at the University of Louisiana at Lafayette ("UL"). Dr. Dobyns was subsequently promoted to Associate Professor, then Full Professor, and finally, appointed as Director of the Center for Gifted Education and the Coordinator for the Master of Education ("M.Ed.") Program in Gifted Education.

Dr. Dobyns alleged that at all times pertinent hereto, she was a qualified individual with a disability within the meaning and intent of the ADA and the LEDL in that she had an actual impairment, had a record of impairment, and was regarded by the Board as disabled. Dr. Dobyns alleged that she suffered from severe allergies due to the many environmental allergens in south Louisiana, which resulted in a compromised immune system. Dr. Dobyns contended that on January 31, 2008, she advised the Board of her disability and that UL's then-acting Vice-President of Academic Affairs, Dr. Stephen Landry, made recommendations for a plan of action to accommodate her disability that still allowed her to fulfill her academic duties at UL.

Thereafter, on October 15, 2008, Dr. Dobyns submitted a written request, styled as a request for accommodations ("Request for Reasonable Accommodations for Physical Disability"), to Dr. Landry, attaching letters from her treating physicians who recommended that during the winter months (i.e., December through February), she be allowed to work in a northern, non-pollinating climate in order to allow her compromised immune system to rest and reset. Dr. Dobyns included a plan for the ways that she would be able to fulfill her responsibilities to UL during the time she was away, including alternative scheduling augmented by distance learning options to meet the requirements for her courses. Dr. Dobyns stated that her department head, Dr. Christine Briggs, approved her proposed accommodation.

On November 24, 2008, Dr. Landry responded in writing to Dr. Dobyns's request, stating: "It is my understanding that you are requesting sick leave because of your documented medical conditions and hence you must apply for and document sick leave[,] which will be approved based upon both your accumulated hours of sick leave and the physician statements provided," and included an excerpt of the UL Faculty Handbook's "Policy on Utilization of Sick or Annual Leave."

According to her petition, Dr. Dobyns alleged that the Board accommodated her disability by allowing her to work from Connecticut during the winter months, where she was able to fulfill all of her responsibilities to UL, beginning in December 2008, without taking sick leave. Dr. Dobyns departed for Connecticut on November 26, 2008, without authorization from the Board to be absent from campus and without taking sick leave.

Dr. Dobyns claimed that her accommodation continued until Dr. Carolyn Bruder became Interim Vice-President of Academic Affairs at UL in January 2011. In January 2011, Dr. Dobyns submitted a request for compensation for the summers of 2009 and 2010. On February 14, 2011, she received an email from Dr. Bruder questioning her absence from the UL campus and why she had not applied for sick leave. In May 2011, Dr. Dobyns met with Dr. Bruder (along with Dr. Briggs), wherein Dr. Bruder informed Dr. Dobyns that her pay for the summers of 2009 and 2010 would be reduced for work Dr. Dobyns alleged she had already completed and for compensation that had already been approved. Dr. Dobyns claimed the reason given to her by Dr. Bruder was that she "had not been present" on the UL campus.

After repeatedly reporting what she alleged as disability-based harassment, denials of her repeated requests for continued accommodations, and retaliation, Dr. Dobyns filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") and the Louisiana Commission on Human Rights ("LCHR") on August 12, 2011, wherein she claimed:

Since May 2, 2011, I have been subjected to harassment, ridicule, and treatment different than others in the presence of my colleagues and Department Head, by Dr. Carolyn Bruder, Interim Vice President for Academic Affairs.... I have also been denied accommodations for my disability [handwritten].
According to Dr. Carolyn Bruder, she did "not agree with the rate of reimbursement" for summer work already approved and performed (as far back as the year 2000.)[.]
I believe that I have been discriminated against in violation of the Americans with Disabilities Act of 1990 (ADA) due to disability; and retaliation for opposing practices made unlawful under Title VII of the Civil Rights Act of 1964, as amended.[ ]

Thereafter, on August 15, 2011, Dr. Gerald Carlson, Dean of the College of Education, informed Dr. Dobyns that she was being removed from her position as Director of the Center for Gifted Education.

Dr. Dobyns subsequently filed suit against the Board on December 22, 2011. Specifically, Dr. Dobyns alleged disability-based harassment and failure to accommodate in violation of the ADA and the LEDL, and retaliation in violation of the ADA and La. R.S. 23:967, in response to her complaints and protests that began in early 2011, when Dr. Bruder became Interim Vice-President for Academic Affairs at UL. Dr. Dobyns retired from UL in July 2013.

Following a six-day jury trial held February 6-13, 2017, the jury issued its verdict on February 13, 2017, in favor of Dr. Dobyns and against the Board on her retaliation claim and awarded damages to Dr. Dobyns in the amount of $ 25,000.00.

The trial court signed a judgment on September 18, 2017, on the jury verdict, the damages award, attorney's fees, and costs, which decreed:

IT IS ORDERED, ADJUDGED AND DECREED that Judgment in accordance with the Jury Verdict be and is hereby rendered in favor of Plaintiff, Sally Dobyns, and against Defendant, the Board of Supervisors for the University of Louisiana System for unlawful retaliation.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be a judgment against Defendant and in favor of Plaintiff for compensatory damages in the amount of Twenty Five Thousand and No/100 Dollars ($ 25,000.00) together with legal interest from the date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the determination of the amount of attorney's fees and costs to which Plaintiff may be entitled is excluded from this Final Judgment, which is a final judgment in all other respects, and that this Court shall retain jurisdiction to determine the issue of attorney's fees and costs.

On September 21, 2017, the trial court signed another judgment on the jury verdict, the damages award, court costs, and the Board's motion to dismiss Dr. Dobyns's claim for attorney's fees, which decreed:

IT IS ORDERED, ADJUDGED AND DECREED that Final Judgment in accordance with the Jury Verdict be and is hereby rendered in favor of Plaintiff, Sally Dobyns, and against Defendant, the Board of Supervisors for the University of Louisiana System, in the amount of TWENTY-FIVE THOUSAND and NO/100 ($ 25,000.00) DOLLARS, together with interest at 6% per annum from the date service was requested following the judicial demand until the date of this Final Judgment, as provided in R.S. 13:5112(C), and thereafter at the rate fixed by R.S. 9:3500.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Court Costs be and are hereby taxed against Defendant, the Board of Supervisors for the University of Louisiana System, and, in accordance with R.S. 13:5112(A) are hereby set at $ 11,958.57.
In further consideration of Defendant's post-trial Motion to Dismiss Plaintiff's Claim for Attorney's Fees, argued on June 12, 2017 by Crystal Bounds for the Plaintiff and Patrick McIntire for the Defendant, and in accordance with written reasons issued on July 18, 2017:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Dismiss Plaintiff's Claim for Attorney's Fees be and is hereby GRANTED, dismissing Plaintiff's claim for attorney's fees with prejudice, and with each party to bear their own respective costs on that Motion, set as $ 28.00 for Plaintiff and $ 55.00 for Defendant.

The Board filed a motion for new trial or judgment notwithstanding the verdict ("JNOV") of the September 18 and 21, 2017 judgments regarding the jury verdict. Following a hearing, the trial court denied the Board's motion for new trial or JNOV and vacated its September 21, 2017 judgment. Thereafter, the Board filed a motion and order for a suspensive appeal of the September 18, 2017 judgment regarding the jury verdict.

RULE TO SHOW CAUSE; TIMELINESS OF APPEAL

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue, and we are obligated to recognize any lack of jurisdiction if it exists. Quality Envtl. Processes, Inc. v. Energy Dev. Corp., 2016-0171 (La. App. 1 Cir. 4/12/17), 218 So.3d 1045, 1052-53. After the instant appeal was lodged, this court issued a rule to show cause ordering the parties to file briefs discussing why the instant appeal should not be dismissed because "[i]t appears that the Motion for [Suspensive] Appeal was filed untimely. " The show cause order was referred to this merits panel by an interim order dated November 13, 2018.

The trial court rendered judgment in favor of Dr. Dobyns and against the Board on September 18, 2017. Louisiana Code of Civil Procedure article 1974, governing the delay for applying for a new trial, provides:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. [Emphasis added.]

Article 1913(A), governing notice of judgment, provides:

Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.

According to La. C.C.P. art. 1913(A), notice of the signing of a final judgment is required in all contested cases and shall be mailed by the clerk of court to the counsel of record for each party. Carter v. C & M Freightliner, LLC, 2011-2184 (La. App. 1 Cir. 8/15/12), 97 So.3d 1191, 1194.

Article 1913(D) requires the clerk to file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

The record reveals that the bottom of the September 18, 2017 judgment contains a stamped certification, which reads: "I hereby certify that on this date a notice of the above judgment was mailed by me." The stamped certification includes a handwritten date of September 25, 2017, was signed by a deputy clerk of court for East Baton Rouge Parish (Wendy Richardson), and includes the handwritten names of eight people, but not any titles, designations, or mailing addresses for those listed.

After this court's show cause order was issued, the Board supplemented the record with a notice of judgment dated September 26, 2017, that was issued by the same deputy clerk of court (Wendy Richardson) and which identified the name, firm, and address of counsel for the Board. The notice of judgment states: "YOU ARE HEREBY NOTIFIED OF THE FOLLOWING ACTION FOR THE AFOREMENTIONED CASE: THE COURT ENCLOSES A COPY OF THE JUDGMENT RENDERED ON THE TRIAL HELD FEBRUARY 6 - 10, 2017. (SEE DECREE)". The September 18, 2017 judgment on the jury verdict is attached to the notice of judgment.

Although dated September 26, 2017, the notice of judgment does not indicate that it was actually mailed on that date; however, the record reveals that counsel for Dr. Dobyns, as well as the trial court, acknowledged that notice of the September 18, 2017 judgment was mailed to the parties on September 26, 2017. When there is uncertainty as to the date of the notice of judgment, any doubt must be resolved in favor of the right to appeal. See Penalber v. Blount, 405 So.2d 1376, 1377 (La. App. 1 Cir. 1981). Accordingly, we find that notice of the September 18, 2017 judgment was mailed to the parties on September 26, 2017.

Therefore, the delay for applying for a new trial began on September 27, 2017-the day after the clerk of court mailed the judgment. See La. C.C.P. art. 1974. Seven days exclusive of legal holidays ran as of October 5, 2017. The Board has supplemented the record with documents showing that it fax-filed its motion for new trial or JNOV on October 5, 2017, which was received by the clerk of court's office that day, and that the Board thereafter complied with all of the statutory requirements governing fax-filings in civil actions. See La. R.S. 13:850. Thus, we find that the Board filed its motion for new trial or JNOV timely.

Following a hearing on the Board's motion for new trial or JNOV, the trial court denied the Board's motion, issuing reasons on February 8, 2018, and signing a judgment in accordance therewith on April 10, 2018. Louisiana Code of Civil Procedure article 2123, governing the delay for taking a suspensive appeal, provides, in pertinent part:

A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, only within thirty days of any of the following:
[...]
(2) The date of the mailing of notice of the court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.

Article 1914(C) provides:

If the interlocutory judgment is one refusing to grant a new trial or a judgment notwithstanding the verdict, the clerk shall mail notice to each party regardless of whether the motion is taken under advisement. The delay for appealing the final judgment commences to run only from the date of the mailing of the notice, as provided in Articles 2087 and 2123.

The record does not contain a certificate showing the date on which, and the counsel and parties to whom, notice of the signing of the April 10, 2018 judgment denying the Board's motion for new trial or JNOV was mailed; however, we can assume that notice of judgment was mailed on April 10, 2018, or on some day thereafter. The Board filed its motion for a suspensive appeal on April 20, 2018, which is well within the thirty-day delay provided for in La. C.C.P. art. 2123(A), regardless of the actual date notice of the April 10, 2018 judgment was mailed. Based on the foregoing, we find that the Board timely filed its appeal, which we hereby maintain.

ASSIGNMENTS OF ERROR

The Board assigns the following errors to the trial court's September 18, 2017 judgment:

1. The trial court erred ... by including jury interrogatory three on the Jury Verdict Form. It allowed for a plaintiff's liability verdict with only a finding that[:] (1) the Plaintiff's summer pay was reduced; (2) the Plaintiff was removed from her position; or (3) the Plaintiff was required to take leave when going to Connecticut, when none of those findings creates liability under the applicable legal principles.
2. The trial court erred by finding in favor of the plaintiff on her ADA retaliation claim. Under a de novo review, the plaintiff failed in her burden of proof. And even if every reasonable inference is given to the plaintiff, the evidence adduced at trial cannot reasonably be interpreted to trigger liability under the ADA or [the Louisiana] whistleblower law.

LAW AND DISCUSSION

Standard of Review

The jury interrogatories and a jury's factual findings are reviewed under the manifest error/clearly wrong standard of review. James v. Autozone, Inc., 2003-1255 (La. App. 1 Cir. 4/2/04), 879 So.2d 162, 165 ; Suprun v. Louisiana Farm Bureau Mut. Ins. Co., 2008-0241 (La. App. 1 Cir. 9/12/08), 2008 WL 4190661, at *3 (unpublished). A court of appeal must not set aside the trier of fact's findings unless (1) a reasonable factual basis does not exist in the record for the finding and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, DOTD, 617 So.2d 880, 882 (La. 1993).

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings. Id. Where a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. at 845.

As to jury interrogatories, unless the proposed jury interrogatories are so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts (i.e. , constitute reversible error), the manifest error/clearly wrong standard applies. James, 879 So.2d at 165. But when a legal error, such as inadequate or improper jury instructions, interdicts the fact-finding process, the manifest error standard no longer applies. If the record is otherwise complete, the reviewing court should conduct a de novo review. Georgia-Pacific, LLC v. Dresser-Rand Co., 2015-2002 (La. App. 1 Cir. 10/31/16), 207 So.3d 1131, 1140, writ denied, 2016-02114 (La. 1/13/17), 215 So.3d 248.

Assignment of Error No. 1 : The Jury Verdict Form

In the Board's first assignment of error, it complains that the trial court's jury verdict form (or jury interrogatories) was defective-specifically, the third interrogatory-amounting to reversible error and warranting a de novo review of this matter.

The trial court is required to instruct jurors on the law applicable to the cause submitted to them. See La. C.C.P. arts. 1792 and 1793. As stated by this court:

The trial court is not required to give the precise instruction submitted by either party, but must give instructions that properly reflect the law applicable in light of the facts of the particular case. Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial court must correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instructions do not adequately set forth the issues to be decided by the jury and may constitute reversible error. Correlative to the trial court's duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law.
Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the instructions correctly state the substance of the law. But when a jury is erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury instruction to determine if the charges adequately provided the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the instructions adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. The standard of review in determining whether an erroneous jury instruction has been given requires a comparison of the degree of error with the jury instructions as a whole and the circumstances of the case.
Likewise, the jury's verdict form may not be set aside unless the form is so inadequate that the jury is precluded from reaching a verdict based on correct law and facts. Jury forms or interrogatories that are misleading or confusing may be reversible error. Jury interrogatories must fairly and reasonably point out the issues to guide the jury in reaching an appropriate verdict. If the verdict form does not adequately set forth the issues to be decided by the jury (i.e., omits an applicable essential legal principle or is misleading and confusing), such interrogatories may constitute reversible error. [Citations omitted.]

Georgia-Pacific, LLC, 207 So.3d at 1137-38.

In this case, the trial court's instruction to the jury as to Dr. Dobyns's retaliation claims were as follows:

Plaintiff Dr. Dobyns claims that defendant retaliated against her because she took steps to enforce her lawful rights under federal law prohibiting discrimination and/or harassment based on disability in the workplace.
The law that prohibits discrimination and/or harassment in the workplace also prohibits an employer from retaliating against an employee because that employee has asserted rights or made complaints under that law.
Plaintiff Dr. Dobyns claims that defendant retaliated against her when she opposed the defendant's refusal to accommodate her disability, filed an EEOC charge, and/or opposed disability based discrimination and/or harassment by engaging in an adverse action pertaining to her employment when the defendant reduced her requested summer pay, relieved her as Director of the Center of Gifted Education, forced her to take leave, and/or forced her from her job. The [d]efendant denied these claims made by Dr. Dobyns[.]
In order for the plaintiff to prove her claim of retaliation under the ADA, the plaintiff must prove by a preponderance of the evidence that:
1. She participated in an activity protected under the law;
2. Her employer took an adverse employment action against her; and
3. There is a casual connection between the protected activity and the adverse action.
Plaintiff also claims that she was subjected to illegal reprisal under Louisiana law for her opposition to, reporting of, and protesting her alleged unlawful discrimination/harassment. Louisiana law provides that an employer may be held liable to its employee for reprisal if the employee proves, by a preponderance, the following elements:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of the law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body, including to the Equal Opportunity Commission (EEOC) or the Louisiana Commission on Human Rights (LCHR) conducting an investigation, hearing, or inquiry into any violation of law, or,
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
Reprisal may include such things as firing an employee, loss of benefits, loss of pay, harassment, suspension, forced leave, effective demotion or any discriminatory action you find was taken as a result of the employee's disclosing, threatening to disclose, providing information to a public body, objection and/or opposing violations of law.

The Board does not challenge the jury instructions on appeal. After receiving those instructions, the jury was provided a verdict form with the following interrogatories to answer:

1. Do you find by a preponderance of the evidence that the defendant unreasonably denied plaintiff's request to work remotely to accommodate her condition?
_____ Yes _____ No
Please proceed to question # 2.
2. Do you find by a preponderance of the evidence that the defendant harassed the plaintiff because of her condition?
_____ Yes _____ No
Please proceed to question # 3.
3. Do you find by a preponderance of the evidence that the defendant reduced plaintiffs requested summer pay; and/or that she was removed as the Director of the Center For Gifted Education; and/or forced to take leave because of her condition; and/or harassed her because she sought to protect her legal right against discrimination based on her condition?
_____ Yes _____ No
If your answer is "YES" to either # 1, # 2, and/or # 3 above, please proceed to question # 4. If your answer is "NO", to # 1, # 2 and # 3 then you are done. Foreperson should sign and date this instrument and notify the bailiff that the jury has reached a verdict.
4. Do you find by a preponderance of the evidence that the plaintiff suffered damages as a result of the defendant's actions?
_____ Yes _____ No
If your answer is "YES", Please proceed to question # 5. If your answer is "NO," you are done. Foreperson should sign and date this instrument and notify the bailiff that the jury has reached a verdict.
5. Please state what sum of money in dollars and cents that would reasonably and fairly compensate the plaintiff for the damages she suffered from the actions of the defendant?
$ __________________

The record demonstrates that the Board timely objected to the jury verdict form. See La. C.C.P. art. 1793(C). The jury then returned its verdict, responding negatively to the first and second interrogatories, responding affirmatively to the third and fourth interrogatories, and writing $ 25,000.00 in the blank for the amount underneath the fifth interrogatory.

The Board contends that the third interrogatory failed to adequately set forth the elements of a retaliation claim under the ADA (and to the extent applicable, under La. R.S. 23:967 ): proof of a protected activity, adverse employment action, and causation. Upon proof of those elements, the Board states that an employer must then provide a legitimate non-discriminatory reason for the adverse employment action, and upon providing such a reason, the burden shifts to the employee to prove but-for causation between the protected activity and the adverse employment action.

The Board argues that there are two defective inquiries in the third interrogatory: "Do you find by a preponderance of the evidence that the defendant reduced plaintiffs requested summer pay;" and "and/or do you find by a preponderance that she was removed as the Director of the Center For Gifted Education." The Board avers that those two inquiries required the jury to recognize two, undisputed facts: that the Board reduced Dr. Dobyns's summer pay in 2009 and 2010 from the amount she had requested; and, that Dr. Dobyns was removed as Director of the Center for Gifted Education. The Board contends that affirmative responses to those inquiries resulted in the jury automatically finding-based on the facts and evidence presented at trial-liability against the Board, regardless of the applicable law on retaliation under the ADA and La. R.S. 23:967.

In response, Dr. Dobyns argues that the third interrogatory specifically and unequivocally set forth the applicable legal standard for a retaliation claim under the ADA and La. R.S. 23:967, which she avers required her to prove that the Board's alleged retaliatory actions were taken because she sought to protect her legal rights against discrimination based on her disability. Dr. Dobyns further argues that the jury instruction given by the trial court as to her retaliation claims under the ADA and La. R.S. 23:967 clearly encapsulated the elements, as well as her burden of proof, of her retaliation claims, which she contends were echoed in the third interrogatory. Dr. Dobyns avers that the jury was given a copy of the jury instructions and the jury verdict form prior to retiring to deliberate their verdict.

Based on our review of the jury verdict form, we find that the third jury interrogatory was not defective and that it fairly and reasonably pointed out the retaliatory issue to guide the jury in reaching an appropriate verdict. From our review of the record, we do not find confusion of the jury or any inadequacy of the third jury interrogatory that would warrant ignoring the manifest error standard of review. Once the case was submitted to the jury, there were no exchanges between the jury and the court regarding the case. The jury instructions, given in conjunction with the jury verdict form, adequately provided the jury with the correct principles of law and adequately guided the jury in its deliberation. We cannot say that the third jury interrogatory misled the jury to the extent that it was prevented from dispensing justice. Therefore, we find no merit in this assignment of error.

Assignment of Error No. 2: Retaliation under the ADA and La. R.S. 23:967

In its second assignment of error, the Board argues that Dr. Dobyns failed to meet her burden of proof on a retaliation claim under the ADA and La. R.S. 23:967. Under 42 U.S.C. § 12203(a), "[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." A plaintiff asserting a retaliation claim under the ADA need not prove that she has a disability. See 42 U.S.C. § 12203(a) ;

Tabatchnik v. Continental Airlines, 262 F. App'x 674, 676 (5th Cir. 2008).

To establish a prima facie case of retaliation under the ADA, a plaintiff must show that: (1) she participated in an activity protected under the statute; (2) her employer took an adverse employment action against her; and (3) a causal connection exists between the protected activity and the adverse action. If the employee establishes a prima facie case, the burden shifts to the employer to state a legitimate, non-retaliatory reason for its decision. After the employer states its reason, the burden shifts back to the employee to demonstrate that the employer's reason is actually a pretext for retaliation, which the employee accomplishes by showing that the adverse action would not have occurred "but for" the employer's retaliatory motive. Feist v. Louisiana, Dep't of Justice, Office of the Atty. Gen., 730 F.3d 450, 454 (5th Cir. 2013).

Protected activity is any activity opposing employment actions or practices that are unlawful under the ADA, such as filing charges with the EEOC alleging discrimination on the basis of a perceived disability. The complaint must connect the complained-of employment practice to the employee's alleged disability. Gordon v. Acosta Sales & Mktg., Inc., 622 F. App'x 426, 431 (5th Cir. 2015). The relevant question is not whether a formal accusation of discrimination is made, but whether the employee's communications to the employer sufficiently convey the employee's reasonable concerns that the employer has acted or is acting in an unlawful discriminatory manner. Yount v. S & A Rest. Corp., 226 F.3d 641 (5th Cir. 2000) (unpublished per curiam ).

An adverse employment action is not limited to workplace-related or employment-related retaliatory acts and harm. The key question is whether the challenged action is materially adverse in that it is harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination. The standard is objective, but the significance of any given act of retaliation will often depend upon the particular circumstances. Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm'rs, 810 F.3d 940, 945 (5th Cir. 2015). Dr. Dobyns alleged that any of the following constituted adverse employment actions taken by the Board: removing her as the Director of the Center for Gifted Education, forcing her to take sick leave, retroactively reducing her summer pay for the summers of 2009 and 2010, and harassing her based on her repeated requests for accommodation.

A "causal link" is established when the evidence demonstrates that the employer's adverse action was based in part on knowledge of the employee's protected activity. Nall v. BNSF Railway Company, 917 F.3d 335, 349 (5th Cir. 2019). Formerly, temporal proximity between protected activity and alleged retaliation was sometimes enough to establish causation at the prima facie stage. However, the burden has now shifted to a heightened standard of "but-for" causation, for which temporal proximity, without more, will not suffice. Hernandez v. Metro. Transit Auth. of Harris Cty., 673 F. App'x 414, 419-20 (5th Cir. 2016).

The Louisiana whistleblower statute, La. R.S. 23:967, provides, in pertinent part:

A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.

The Louisiana whistleblower statute targets serious employer conduct that violates the law. Melancon v. Town of Amite City, 2018-0442 (La. App. 1 Cir. 9/24/18), 261 So.3d 7, 10. A civil action is available as a remedy when an employer retaliates against an employee for making disclosures protected under the statute. La. R.S. 23:967(B) ; Melancon, 261 So.3d at 10. As a condition precedent to protection under the statute, the employee must first advise the employer of the violation of law before making the disclosure. La. R.S. 23:967(A) ; Melancon, 261 So.3d at 10. A violation of the statute occurs if: (1) the employer violated Louisiana law through a prohibited workplace practice; (2) the plaintiff advised the employer of the violation; (3) the plaintiff threatened to disclose or disclosed the prohibited practice; and (4) the plaintiff experienced a reprisal as a result of the threat to disclose or because of the disclosure of the prohibited practice. See Melancon, 261 So.3d at 10.

A "reprisal" includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under La. R.S. 23:967(A). La. R.S. 23:967(C)(1). However, an employer is not prohibited from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such. Melancon, 261 So.3d at 10.

Dr. Dobyns showed that she participated in a protected activity by filing a charge of discrimination with the EEOC and the LCHR. Dr. Dobyns demonstrated the Board took an adverse employment action against her by removing her as the Director of the Center for Gifted Education. Dr. Dobyns also showed that a causal connection existed between the protected activity and the Board's adverse action by demonstrating that after she filed her charge of discrimination on August 12, 2011, she was removed as Director of the Center for Gifted Education three days later on August 15, 2011.

Thereafter, the burden shifted to the Board to state a legitimate, non-retaliatory reason for its decision. Dr. Gerald Carlson, Dean of the College of Education, testified that the Board's decision to remove Dr. Dobyns from her position as the Director of the Center for Gifted Education was based on the fact that the Board needed a Director who was consistently physically present on the UL campus to "be available to students when they came in, and the coordination of various programs that they had throughout the year, and primarily, the summer school."

The burden then shifted back to Dr. Dobyns to demonstrate that the Board's reason was actually a pretext for retaliation. In response to a question from counsel for Dr. Dobyns-"And it is true, is it not, that one of the reasons that you identified for removing Dr. Dobyns as director is because y'all were making accommodations and she was gone because she was being accommodated, right?"-Dr. Carlson testified, "I think in the conversation I had with Dr. Dobyns, I did mention that." In a prior deposition, which counsel for Dr. Dobyns used to impeach Dr. Carlson at trial, two reasons Dr. Carlson gave for the removal of Dr. Dobyns as the Director of the Center for Gifted Education were that he "felt it was a good time to move in a different direction other than just Lagniappe and summer programs" and that "when we were making accommodations for [Dr. Dobyns] to be gone, the center was without a director for several months. And I just felt it was important to have somebody there full time and be available to students, to faculty, to whoever's coordinating some of these other programs within the center to be there." Based on the evidence presented at trial, there is a causal link between the Board's removal of Dr. Dobyns as Director of the Center for Gifted Education and her accommodations. The jury reasonably rejected the Board's proposed "legitimate, non-retaliatory" reason for its decision to remove Dr. Dobyns as Director of the Center for Gifted Education.

For the same reasons we find that Dr. Dobyns prevailed on her retaliation claim under the ADA, we find that Dr. Dobyns experienced a reprisal as a result of disclosing a prohibited practice in accordance with La. R.S. 23:967. Accordingly, we conclude that the record contains a reasonable factual basis for the jury's finding that Dr. Dobyns established a prima facie case of retaliation under the ADA and La. R.S. 23:967. We cannot say that the jury's verdict is manifestly erroneous.

DECREE

Based on the foregoing, the appeal is maintained. The motion of the defendant/appellant, the Board of Supervisors for the University of Louisiana System on behalf of The University of Louisiana at Lafayette, to correct citations in its original appellant brief is granted. The trial court's September 18, 2017 judgment on the jury verdict is affirmed. All costs of this appeal, in the amount of $ 15,027.00, are assessed to the defendant/appellant, the Board of Supervisors for the University of Louisiana System on behalf of The University of Louisiana at Lafayette.

APPEAL MAINTAINED; APPELLANT'S MOTION TO CORRECT CITATIONS IN ORIGINAL BRIEF GRANTED; JUDGMENT AFFIRMED.

Chutz, J. concurs.

      Dr. Dobyns received a notice of right to sue from the EEOC on October 31, 2012.

      Dr. Doybns filed an original petition and was later granted leave by the trial court to file a supplemental and amending petition, a corrected supplemental and amending petition, and a second supplemental and amending petition.

      The trial court also signed a judgment on September 18, 2017, granting the Board's motion to dismiss Dr. Dobyns's claim for attorney's fees with prejudice and ordering each party to bear their own respective costs on the motion. That ruling is the subject of a related, pending appeal filed by Dr. Dobyns-2018 CA 0488.

      Dr. Dobyns opposed the Board's motion for new trial or JNOV.

      The eight people listed near the stamped certification are: Amanda Love (unknown), Patrick McIntire (counsel for the Board), Crystal Bounds (counsel for Dr. Dobyns), Jill Craft (counsel for Dr. Dobyns), Michael LaBorde (counsel for the Board), Michael Duran (counsel for the Board), Robin Magee (counsel for the Board), and Lawrence Marino (counsel for the Board).

      The Board filed a motion to correct citations in its appellant brief; we grant that motion.


author: Judge Rosemary Ledet

text:
    Henry MULLER v. FORT PIKE VOLUNTEER FIRE DEPARTMENT aka Fort Pike Fire Protection District aka Fort Pike Volunteer Fire Department District One and Bryan Gonzales, both Individually and in his Capacity as President and Secretary of the above and Kirk Jacobs, both Individually and as President of the above
    NO. 2019-CA-0156
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 26, 2019
    Henry Muller, 228 Lake Village Blvd., Slidell, LA 70461, PRO SE, PLAINTIFF/APPELLANT
    William H. Dunckelman, Jr., Laurent J. Demosthenidy, SCHAFER & SCHAFER, 328 Lafayette Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Rosemary Ledet )
   Judge Rosemary Ledet

This is a tort suit. The plaintiff, Henry Muller, sued the defendants-the Fort Pike Volunteer Fire Department (the "Department"), Bryan Gonzalez, and Kirk Jacobs (collectively the "Defendants")-for defamation. In response, Mr. Jacobs filed an exception of no cause action; and the Defendants filed a special motion to strike the petition, pursuant to La. C.C.P. art. 971. In connection with the motion to strike, Mr. Muller caused a subpoena duces tecum to issue to the Department; and the Defendants filed a motion to quash the subpoena. The trial court granted Mr. Jacobs' exception and the Defendants' motions. From that judgment, Mr. Muller appeals. Answering Mr. Muller's appeal, the Defendants request attorney's fees and costs. For the reasons that follow, we affirm the trial court's judgment and remand the Defendants' request for attorney's fees and costs.

BACKGROUND

The Lake Catherine area (including Fort Pike) is a geographically remote part of New Orleans. Fire protection services are provided to the Lake Catherine area primarily by the New Orleans Fire Department and the Louisiana State Fire Marshall. Additionally, since 1952, the Department, a private entity organized under Louisiana law, has provided supplemental fire protection services to the Lake Catherine area.

To support the Department's volunteer efforts, the Legislature created the Fort Pike Fire Protection District, a public entity. See La. R.S. 40:1503.1 (the "Statute"); see also La. R.S. 40:1500 (providing that "[f]ire protection districts shall constitute public corporations"). The Statute provides that "the affairs of the district shall be managed by the members of the governing board of the [Department]" and authorizes the Department's board to levy, with the approval of qualified electors in the district, an annual ad valorem tax. La. R.S. 40:1503.1(D), (E).

In mid-2017, Mr. Muller joined the Department. After joining the Department, Mr. Muller sent an email to the Department's chief, Charles Schmalz, who forwarded it to Mr. Gonzalez. In the email, Mr. Muller stated that, under the Statute, the Department had been absorbed into the Fort Pike Fire Protection District and was thus "a public corporation by [s]tatute." Mr. Muller stated that, as matters stood, the Department was essentially "a private corporation operating under color of law as a [m]unicipality" and that "[o]perating a [m]unicipality like a private corporation could lead to serious problems."

One such problem, Mr. Muller suggested, was that doing so may constitute the crime of malfeasance in office under La. R.S. 14:134. Mr. Muller also suggested that all board meetings were now subject to the Open Meetings Law and were, thus, required to be publicized at least one week in advance. Mr. Muller pointed out that violations of the Open Meetings Law are subject to private enforcement actions seeking, among other remedies, civil penalties for which violators may be personally liable.

On November 11, 2017, the Department held its monthly membership meeting. During the meeting, Mr. Jacobs invited Mr. Muller to address the issues raised in his email. Mr. Muller expressed concern that the board was not working well with the firemen, that recruitment efforts were insufficient, and that operating under the title of "Fort Pike Fire Protection District" would assist in raising revenue. Mr. Jacobs then opened the floor for discussion.

At that time, Mr. Gonzalez addressed Mr. Muller's concern about the Department continuing to operate as a private entity. Mr. Gonzalez then explained that the Department does not receive any government revenue and does not operate as a municipality. The board's vice president, Michael Comisky, further explained why dissolution of the Department and reorganization as a fire protection district would be undesirable. Other members then expressed their views, and the meeting ended.

In the months following the meeting, Mr. Muller sent emails to Mr. Schmalz and the board members, expressing dissatisfaction with his treatment at the November 11, 2017 membership meeting and his intent to take legal action. In response, Mr. Gonzalez searched publicly available records for information about Mr. Muller. During his search, Mr. Gonzalez learned that Mr. Muller had been convicted of false impersonation of a peace officer. Mr. Gonzalez shared this information at a March 10, 2018 membership meeting; and the members voted to expel Mr. Muller from the Department.

A month later, Mr. Muller filed this suit. In his petition, Mr. Muller made the following allegations:

• That, at the November 11, 2017 membership meeting, Mr. Gonzalez had "verbally attacked [Mr. Muller] by stating that [Mr. Muller] made email 'threats' to him," that "[a]s a result of the vicious, malicious and unwarranted attack by [Mr.] Gonzales ... [Mr. Muller had] endured public humiliation, contempt, ridicule, [and] obloquy," and that his "reputation was irreparably damaged"; and
• That, at the March 10, 2018 membership meeting, the Defendants "discussed information about [Mr. Muller], obtained through an unauthorized background check, the purpose of which was to attempt to ridicule and shame [Mr. Muller] in public and for the purpose of reprisal"; and
• That Mr. Jacobs, as president, had a duty, but failed, "to control each meeting, its board members and the content discussed publically [sic]."

Based on these allegations, Mr. Muller asserted that the Defendants were liable to him for defamation.

In response, Mr. Jacobs filed an exception of no cause of action, contending that the petition failed to allege he personally defamed Mr. Muller and that he could not be held liable for any allegedly defamatory statements made by Mr. Gonzalez. The Defendants also filed a special motion to strike Mr. Muller's petition under La. C.C.P. art. 971, denying that Mr. Gonzalez had characterized Mr. Muller's email as a threat and, in the alternative, that even if Mr. Gonzalez had characterized the email as a threat, such speech was protected as a matter of law. In support, the Defendants submitted ten affidavits.

After the exception and the motion to strike were set for hearing, Mr. Muller caused a subpoena duces tecum to issue to the Department to produce documents at the hearing. The Defendants moved to quash the subpoena, arguing that, under La. C.C.P. art. 971(D), discovery was automatically stayed until the trial court ruled on the motion to strike.

On August 10, 2018, the parties appeared for a hearing on Mr. Jacobs' exception and the Defendants' motions. After a bench conference, the trial court indicated that these matters would be submitted on the pleadings. Subsequently, Mr. Muller filed an opposition, praying that Mr. Jacobs' exception and the Defendants' motions be denied. In support of his objection, Mr. Muller filed three affidavits.

On November 14, 2018, the trial court granted Mr. Jacobs' exception of no cause of action and the Defendants' motion to strike the petition, dismissing Mr. Muller's claims. The trial court also granted the Defendants' motion to quash the subpoena duces tecum . Mr. Muller appealed. The Defendants answered Mr. Muller's appeal, seeking attorney's fees and costs.

DISCUSSION

Mr. Muller assigns as error the trial court's rulings granting the Defendants' motion to quash the subpoena duces tecum and granting the Defendants' motion to strike the petition. Before addressing Mr. Muller's arguments, an overview of the constitutional, statutory, and jurisprudential framework within which Mr. Muller's defamation claims are analyzed is appropriate.

Defamation is "an invasion of a person's interest in his reputation and good name." Sassone v. Elder , 626 So.2d 345, 350 (La. 1993) (citing W. Page Keeton, et al. , PROSSER AND KEETON ON THE LAW OF TORTS , § 111 (5th ed. 1984)). Like other states, Louisiana has long recognized a cause of action for defamation. See Costello v. Hardy , 03-1146, p. 13, n.10 (La. 1/21/04), 864 So.2d 129, 140 (observing that, "[s]ince at least 1840, the courts of this state have recognized that defamation is a quasi-offense governed by [La. C.C.] art. 2315").

Nonetheless, "not all defamatory statements are actionable." Fitzgerald v. Tucker , 98-2313, p. 11 (La. 6/29/99), 737 So.2d 706, 716. Both the United States and Louisiana constitutions guarantee the freedom of speech. U.S. CONST. , Amend. I (providing that "Congress shall make no law ... abridging the freedom of speech"); LA. CONST. , Art. I, § 7 (providing that "[n]o law shall curtail or restrain the freedom of speech"). For example, it is well-settled that "[s]peech on matters of public concern enjoys enhanced constitutional protection." Romero v. Thomson Newspapers (Wisconsin), Inc. , 94-1105, p. 6 (La. 1/17/95), 648 So.2d 866, 869 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) ). Indeed, "[a] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection." Romero , 94-1105, p. 7, 648 So.2d at 870 (quoting Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 (1990) ).

To protect speech on matters of public concern, the Legislature enacted La. C.C.P. art. 971, commonly referred to as Louisiana's anti-SLAPP statute. See Lee v. Pennington , 02-0381, p. 4 (La. App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041 (observing that " Article 971 was enacted by the legislature as a procedural device to be used early in legal proceedings to screen meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press"). Under La. C.C.P. art. 971, "[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." La. C.C.P. art. 971(A)(1).

In considering a motion to strike, courts apply a two-part, burden-shifting analysis. The Louisiana Supreme Court has described the analysis as follows:

[T]he 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 makes a prima facie showing that his comments were constitutionally protected and in connection with a public issue, the burden shifts to the plaintiff to demonstrate a probability of success on the claim. In cases where more than one claim is alleged in the petition, the courts examine the probability of success of each claim individually. If the plaintiff can demonstrate a probability of success on any of his claims, then the special motion to strike must fail.

Shelton v. Pavon , 17-0482, pp. 5-6 (La. 10/18/17), 236 So.3d 1233, 1237 (citations omitted). To carry their respective burdens, the parties may submit affidavits;

and the trial court, in making its determination, "shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." La. C.C.P art. 971(A)(2).

In reviewing a trial court's judgment on a motion to strike, as in all cases raising First Amendment issues, "an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan , 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-729, 11 L.Ed.2d 686 (1964) ) (quotation marks omitted). Thus, a trial court's judgment on a motion to strike is reviewed de novo . Shelton v. Pavon , 16-0758, p. 3 (La. App. 4 Cir. 2/15/17), 212 So.3d 603, 606, aff'd , 17-0482 (La. 10/18/17), 236 So.3d 1233 ; see also Yount v. Handshoe , 14-0919, p. 5 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, 384 (citing Thinkstream, Inc. v. Rubin , 06-1595, p. 8 (La. App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100 ).

Turning to Mr. Muller's arguments, he contends that he was entitled to conduct discovery in order to defend against the motion to strike. Thus, he contends, the trial court's ruling granting the motion to quash the subpoena duces tecum was error; and the trial court's ruling granting the motion to strike was premature. We address each ruling separately.

Motion to Quash

As the Defendants point out, under La C.C.P. art. 971(D), "[a]ll discovery proceedings in [a defamation action] shall be stayed upon the filing of a notice of [a] motion [to strike]" and "[t]he stay of discovery shall remain in effect until notice of entry of the order ruling on the motion." Mr. Muller acknowledges that "[o]nce th[e] motion was file[d] it barred [him] from doing any discovery," but he contends that the statutory stay of discovery denied him "access to the Court to properly defend or prosecute anything under [this] case."

Mr. Muller's access-to-courts argument sounds in due process. See LA. CONST. , Art. I, § 22 (providing that "[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights"); see also Lee v. Pennington , 02-0381, pp. 6-7 (La. App. 4 Cir. 10/16/02), 830 So.2d 1037, 1043 (considering whether La. C.C.P. art. 971, as a whole, denied the plaintiff access to courts and, thus, due process). The record, however, does not reflect that Mr. Muller ever challenged the statutory stay of discovery on this basis in the trial court. Accordingly, the access-to-courts issue is not properly before us on appeal. See Bellard v. Louisiana Corr. & Indus. Sch. , 95-0157, p. 5 (La. 10/16/95), 661 So.2d 430, 432 (observing that "[t]he law is well settled that an attack on a statute's constitutionality must be pleaded in the trial court and may not be asserted for the first time on appeal").

In any event, La. C.C.P. art. 971(D) permitted Mr. Muller to obtain discovery by filing a motion requesting discovery of specific items and showing good cause for such requests. See La. C.C.P. art 971(D) (providing that, notwithstanding the statutory stay, "the court, on noticed motion and for good cause shown, may order that specified discovery be conducted").

Motion to Strike

In his petition, Mr. Muller asserted two defamation claims-one relating to the November 11, 2017 membership meeting; the other relating to the March 10, 2018 membership meeting. We address each claim separately, applying the burden-shifting analysis described in Shelton . Accord Yount , 14-919, pp. 6-7, 171 So.3d at 386 (observing that "[i]n those cases where more than one claim is alleged in the petition, courts examine the probability of success of each claim individually") (citing Darden v. Smith , 03-1144, p.8 (La. App. 3 Cir. 6/30/04), 879 So.2d 390, 397 ; Melius v. Keiffer , 07-0189, p. 5 (La. App. 4 Cir. 3/12/08), 980 So.2d 167, 172 ).

Mr. Muller's First Claim

Mr. Muller's first claim is that "[o]n or about November 11, 2017, at a public membership meeting of the [Department], ... [Mr.] Gonzales as Secretary verbally attacked [Mr. Muller] by stating that [Mr. Muller] made email 'threats' to [Mr. Gonzalez], when [Mr. Gonzalez] was president of the [Department], and [to] its present presiding Board." We consider first whether the Defendants offered sufficient evidence to shift the burden to Mr. Muller.

The Defendants' affidavits attest that, in the months leading up to the November 11, 2017 membership meeting, Mr. Muller sent an email to a member of the Department's administration raising concerns about the entity's legal status and asserting that the manner in which the entity was being administered could have consequences not only for the Department itself but also for the individuals responsible for its administration. The affidavits further attest that, at the November 11, 2017 membership meeting, Mr. Gonzalez questioned Mr. Muller about his email and that a related discussion among the members followed.

The Defendants contended in the trial court that these affidavits established that "[t]he allegedly defamatory statements here were made in connection with the parties' public debate on the best way to provide efficient and adequate fire protection and prevention services to the citizens of the Lake Catherine area." Thus, the Defendants contended, Mr. Gonzalez' statement was "conduct in furtherance of the exercise of ... the constitutional right of free speech in connection with a public issue or an issue of public interest." Continuing, the Defendants contended that "[b]ecause the statements concern an issue of public concern, the burden shift[ed] to [Mr.] Muller to establish a probability of success on his claim." See La. C.C.P. art. 971(F)(1)(d). We agree.

A matter of public concern is "any matter of political, social, or other concern to the community." Connick v. Myers , 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Whether speech addresses a matter of public concern "must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. , 461 U.S. at 147-48, 103 S.Ct. at 1690 ; see also Kennedy v. Sheriff of E. Baton Rouge , 05-1418, p. 9, n. 6 (La. 7/10/06), 935 So.2d 669, 677. "Speech on matters directly affecting the health and safety of the public is obviously a matter of public concern." Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1 , 131 F.3d 564, 578 (6th Cir. 1997).

As the Defendants point out, the Legislature has declared it "the public policy of Louisiana that volunteer firefighting is vital to public safety," La. R.S. 37:1735, and that because "volunteer fire departments make up the vast majority of fire departments in the state.... [p]articipation in volunteer fire departments is vital to public safety," La. R.S. 40:1558.1. Indeed, it has been observed, albeit in a different but related context, that "[f]ew subjects are of more public concern ... than the provision of basic fire and rescue services." Beckwith v. City of Daytona Beach Shores , 58 F.3d 1554, 1564 (11th Cir.1995) ; see also Brasslett v. Cota , 761 F.2d 827, 844, n. 14 (1st Cir.1985) (observing that comments by fire chief to local press concerning a town's level of fire protection related to a "prototypical matter of public interest"). Thus, "comments about funding and training in [a] fire department [are] also matters of public concern." Rodin v. City of Coral Springs, Fla. , 229 F. App'x 849, 853 (11th Cir. 2007).

Mr. Muller's email addressed the manner in which the Department should be administered and financed. These are matters of public concern. Mr. Gonzalez' statement was made during a discussion of these matters and was, thus, made in connection with a matter of public concern. Accordingly, Mr. Gonzalez' statement was "conduct in furtherance of the exercise of [his] constitutional right of ... free speech in connection with a public issue or an issue of public interest." La. C.C.P. art. 971(F)(1)(d). Thus, the burden shifted to Mr. Muller to demonstrate a probability of success on his first claim.

To demonstrate a probability of success, Mr. Muller was required to allege and offer evidence to support each of the following elements of defamation: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Cangelosi v. Schwegmann Bros. Giant Super Markets , 390 So.2d 196, 198 (La. 1980). "If even one of the required elements is found lacking, the cause of action fails." Costello v. Hardy , 03-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 140.

As to Mr. Muller's first claim, the element of falsity is lacking. Mr. Gonzalez' statement characterizing Mr. Muller's email as a threat was a statement of opinion and was, thus, neither true nor false. See Bussie v. Lowenthal , 535 So. 2d 378, 381 (La. 1988) (observing that "[a] pure statement of opinion, which is based totally on the speaker's subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation" because "a purely subjective statement can be neither true nor false"); see also Romero v. Thomson , 94-1105, p. 7 (La. 1/17/95), 648 So.2d 866, 870 (observing that "[a] statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection") (quoting Milkovich v. Lorain Journal Co. , 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1 ).

Accordingly, Mr. Muller cannot demonstrate a probability of success on his first claim. We nonetheless consider his second claim. Accord Yount v. Handshoe , 14-919, p. 7 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, 386 (observing that, "[i]f the plaintiff can demonstrate a probability of success on any claim, then the motion must fail").

Mr. Muller's Second Claim

Mr. Muller's second claim is that, "[a]t a public membership meeting of [the Department] held on March 10, 2018, [the] [D]efendants discussed information about [Mr. Muller], obtained through an unauthorized background check, the purpose of which was to attempt to ridicule and shame [him] in public and for the purpose of reprisal." Applying Shelton 's burden-shifting analysis, we first consider whether the Defendants' evidence was sufficient to shift the burden to Mr. Muller.

The Defendants' affidavits attest that Mr. Gonzalez "searched publicly available records and discovered, among other things, that Mr. Muller had been convicted of impersonating a police officer." Mr. Gonzalez brought this information to the attention of the Department's members at the March 10, 2018 meeting; and, in light of that information, the members voted to expel Mr. Muller from the Department.

Again, the provision of fire protection services is a matter of public concern. By extension, the employment decisions of an entity providing such services also are a matter of public concern. Thus, Mr. Gonzalez' statement bringing Mr. Muller's conviction to the attention of the Department's members was a statement made in connection with a matter of public concern. Accordingly, we find Mr. Gonzalez' statement was "conduct in furtherance of the exercise of [his] constitutional right of ... free speech in connection with a public issue or an issue of public interest." La. C.C.P. art. 971(F)(1)(d). Thus, the burden shifted to Mr. Muller to demonstrate a probability of success on his second claim.

Mr. Muller acknowledges his conviction. Because Mr. Muller acknowledges his conviction, the element of falsity is lacking. See Lee v. Pennington , 02-0381, p. 10 (La. App. 4 Cir. 10/16/02), 830 So.2d 1037, 1045 (observing that"[f]alsity cannot be established because the charges of which Plaintiff was arrested and subsequently convicted were admitted in Plaintiff's brief as true"). Thus, Mr. Muller cannot demonstrate a probability of success on his second claim.

Summarizing, because Mr. Muller cannot demonstrate a probability of success on either of his claims, the trial court did not err in granting the Defendants' motion to strike and dismissing both of Mr. Muller's claims.

REQUEST FOR ATTORNEY'S FEES AND COSTS

The Defendants filed an answer to Mr. Muller's appeal, requesting their attorney's fees and costs incurred in connection with the appeal. We remand this request to the trial court.

DECREE

For the foregoing reasons, the trial court's judgment is affirmed, and the Defendants' request for attorney's fees and costs is remanded.

AFFIRMED; REQUEST FOR ATTORNEY'S FEES AND COSTS REMANDED

      As of the filing of this suit, however, the Department's board had not exercised its authority to seek approval for and impose a tax; rather, at all times relevant to this suit, the Department has operated as a private entity.

      At the time, Mr. Gonzalez was the board's president. Subsequently, Mr. Jacobs' became the board's president; and Mr. Gonzalez became the board's secretary.

      See La. R.S. 42:11, et seq.

      The affiants were Mr. Gonzalez; Mr. Jacobs; Mr. Schmalz; Mr. Comisky; and six other individuals who were present at the November 11, 2017 membership meeting.

      The affiants were Mr. Muller; Mr. Muller's wife, Barbara Muller; and Fernand Webber, who was present at both the November 11, 2017 and March 10, 2018 membership meetings.

      In his motion for appeal, Mr. Muller prayed for leave to appeal "suspensively or in the alternative devolutively." In its order, the trial court granted Mr. Muller, who was proceeding in forma pauperis , a suspensive appeal but noted he was required to pay an appeal bond. See La. C.C.P. art. 5185(B) (providing that, although an in forma pauperis party is entitled to a devolutive appeal, "[h]e is not entitled to a suspensive appeal ... unless he furnishes the necessary security therefor"). The record does not reflect that Mr. Muller paid the appeal bond. Accordingly, we convert his suspensive appeal to a devolutive appeal. Accord Franco v. Franco , 04-0967, p. 14 (La. App. 4 Cir. 7/28/04), 881 So.2d 131, 139 (observing that "[i]n ordinary proceedings, a failure to pay a suspensive appeal bond is not generally considered grounds for dismissal because the appeal is simply converted to a devolutive appeal when the appeal bond is not timely paid" and, thus, converting a suspensive appeal to a devolutive appeal where the appellant failed to timely pay the appeal bond). To the extent Mr. Muller assigns as error on appeal that the Defendants have continued to litigate other issues in the trial court, we regard such assignment as moot.

      We liberally construe Mr. Muller's pro se appellate brief. See Manichia v. Mahoney , 10-0087, p. 8 (La. App. 4 Cir. 8/4/10), 45 So.3d 618, 622 (observing that "a pro se litigant may be afforded some leeway or patience in the form of liberally construed pleading").

      " 'SLAPP' is an acronym for Strategic Lawsuit Against Public Participation." Yount v. Handshoe , 14-919, p. 9 (La. App. 5 Cir. 5/28/15), 171 So.3d 381, 387.

      As used in La. C.C.P. art. 971, and act in furtherance of a person's right of petition or free speech includes, but is not limited to, the following:
      (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.
      La. C.C.P. art. 971(F)(1).

      See also Mashburn v. Collin , 355 So.2d 879, 886-87 (La. 1977) (observing that although "[i]t is true that, as a general rule, a Louisiana appellate court should not disturb the reasonable findings and inferences of fact of a trial judge or jury, even though the appellate court may feel that its own evaluations and inferences are as reasonable ... when interpretation of a communication in the light of the constitutional requirements is involved, our scope of review is to examine in depth the statements in issue and the circumstances under which they were made ... and to re-examine the evidentiary basis of the lower court decision in the light of the Constitution") (quotation marks and citations omitted).

      The requirement that a constitutional challenge must be presented first to the trial court is not a formality. The attorney general, who is responsible for defending the constitutionality of Louisiana's statutes, is entitled to notice of any such challenge and an opportunity to be heard. La. C.C.P. art. 1880 (providing that "[i]f [a] statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard").

      There is a dearth of Louisiana jurisprudence specifically considering the constitutionality of La. C.C.P. art. 971(D). In the absence of controlling jurisprudence, Louisiana courts have regarded California jurisprudence interpreting Cal. Civ. Proc. Code § 425.16 -California's anti-SLAPP statute-which is "virtually identical" to La.C.C.P. art. 971, as persuasive. See Louisiana Crisis Assistance Ctr. v. Marzano-Lesnevich , 878 F. Supp. 2d 662, 670, n. 17 (E.D. La. 2012) (observing that "Louisiana courts have specifically noted the similarities between article 971 and California's anti-SLAPP statute and have looked to California case law in the absence of precedential Louisiana authority on point"); see also, e.g. , Baxter v. Scott , 37,092, pp. 8-9 (La. App. 2 Cir. 5/16/03), 847 So.2d 225, 231 (relying on California jurisprudence interpreting California's anti-SLAPP statute as support for the two-part burden-shifting analysis later discussed in Shelton ), judgment vacated on other grounds , 03-2013 (La. 11/14/03), 860 So.2d 535. California jurisprudence has expressly upheld the statutory stay of discovery as constitutional, precisely "because the statute permits a plaintiff to seek discovery by filing a motion and showing good cause." Lafayette Morehouse, Inc. v. Chronicle Publ'g Co. , 37 Cal. App. 4th 855, 867, 44 Cal. Rptr. 2d 46, 53 (1995).

      Other than his discovery argument, Mr. Muller does not expressly contend that the trial court erred in granting the motion to strike. Nonetheless, the Defendants have briefed the merits of the motion to strike. Given Mr. Muller's pro se status, we consider the merits of the trial court's judgment granting the motion to strike.

      Because we affirm the trial court's judgment on the basis of the ruling granting the motion to strike, we pretermit consideration of the trial court's ruling on Mr. Jacobs' exception of no cause of action.