Murphy Painter v. Kelli Suire , 650 F. App'x 219 ( 2016 )

Case: 15-30820 Document: 00513517612 Page: 1 Date Filed: 05/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-30820 May 23, 2016
Summary Calendar
Lyle W. Cayce
Clerk
MURPHY J. PAINTER,
Plaintiff - Appellant
v.
KELLI SUIRE,
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:12-CV-511
Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant–Appellee Kelli Suire worked under Plaintiff–Appellant
Murphy J. Painter as an administrative assistant during Painter’s time as
Commissioner of the Louisiana Office of Alcohol and Tobacco Control. As part
of internal complaints that would later provide the basis for a search warrant
for Painter’s office and, separately, in a state court lawsuit, Suire made a
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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number of statements alleging that Painter had sexually harassed and had
stalked her. Painter thereafter brought the instant defamation suit against
Suire, asserting reputational harm and mental anguish as a result of Suire’s
statements. In a bifurcated trial, the first jury determined that Suire’s
statements were defamatory and therefore actionable. In the second phase of
the trial, another jury found that Painter had not established that he was
injured by Suire’s statements, and the district court dismissed his claims with
prejudice. Painter now appeals, challenging several of the district court’s
rulings in the second phase of the trial. Because we find no reversible error on
the part of the district court, we AFFIRM the judgment of that court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2011, Plaintiff–Appellant Murphy J. Painter filed the
instant action against Defendant–Appellee Kellie Suire in Louisiana state
court, bringing claims of defamation and negligence. This action stems from a
long and detailed history between Painter and Suire, but we recount only those
facts necessary to our decision today.
A. Facts Underlying Painter’s Defamation Suit
The basis of Painter’s claims arose during his time as Commissioner of
the Louisiana Office of Alcohol and Tobacco Control (ATC). Suire was hired as
an administrative assistant in early 2007, left that position several months
later, and was rehired in the summer of 2007 as Painter’s secretary. Painter
contended that in mid-2009, Suire’s job performance began to decline, and he
issued a reprimand to her on August 29, 2009.
Thereafter, Suire met with Dee Everett, who was the human resources
director of the Louisiana Department of Revenue—the state department
within which ATC is contained—to complain of Painter’s treatment of her.
Following Suire’s meeting with Everett, the Department of Revenue hired an
external investigator, Kecia Campbell, to investigate Suire’s complaint. When
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Campbell interviewed Suire, Suire complained that Painter had sexually
discriminated against her, that he was obsessed with her, and that he had
attempted to control her life. Suire alleged that Painter, inter alia, often called
her outside of work hours, inquired about her personal life, drove by her house
several times, called her parents to inquire about her whereabouts, and made
suggestive comments about her interactions with her coworkers. Suire further
reported that Painter “want[ed] to control every aspect of [her] life, both
professional and personal,” but that Painter had not sexually harassed her.
Suire worked at ATC through November 2009. On August 4, 2010, Suire
filed a complaint against Painter with the Louisiana Office of State Inspector
General (OIG). OIG interviewed Suire on August 9, 2010, regarding her
complaint against Painter. Reiterating many of her previous complaints to
OIG, Suire indicated that she believed that Painter had mistreated her because
she refused his romantic advances, but she did not specifically allege that she
was sexually harassed. She also stated that Painter misused state law
enforcement databases. After Suire’s second interview with OIG officials,
Painter conducted a computer search on Suire using a law enforcement
database. OIG officials later interviewed other ATC employees about Painter’s
activities and began an investigation into his potential misuse of law
enforcement databases.
On August 13, 2010, Painter was called to the Governor’s office in the
State Capitol, and his employment with ATC ended. 1 On August 16, 2010, OIG
prepared and filed an application for a search warrant for Painter’s ATC office
and computers, which was later signed by a state court judge. The warrant
included the statement that “[i]ndependent interviews conducted with two
1 Suire contends that Painter resigned, while Painter maintains that he was
terminated.
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[Louisiana] ATC enforcement officers have substantiated the stalking victim’s
allegations as to Painter’s stalking of the victim, as well as his misuse of the
computerized database known as Voyager.”
On August 26, 2010, Suire petitioned a Louisiana state court for
injunctive relief and a temporary restraining order against Painter, which she
supported with an affidavit stating that she had resigned from ATC because of
the “continuous and ongoing harassment, intimidation, abuse, and stalking at
the hands of . . . Murphy Painter.” With the consent of Painter, a preliminary
injunction was issued on September 7, 2010, which prohibited Painter from
stalking or harassing Suire and required him to stay away from her and her
family. Suire later supplemented and amended her state court petition to add
a claim for damages under 42 U.S.C. § 1983, alleging violations of her clearly
established rights under the First and Fourteenth Amendments based on
Painter’s sexual harassment of her. 2 In this amended petition, she named
Painter in his individual and official capacities and the Louisiana Department
of Revenue as defendants.
While her damages claims were pending before the state court, Painter
was found guilty of contempt of court on February 24, 2011, for violating the
preliminary injunction entered against him. Later, on July 8, 2011, the
Department of Revenue and Painter in his official capacity settled Suire’s state
court claims for $100,000. Painter, in his individual capacity, however, refused
to consent to the settlement. The instant defamation suit followed on August
12, 2011.
2 In her amended complaint, Suire alleged that she was “subjected to unwelcome,
sexual harassment, consisting of, but not limited to . . . [c]onstant comments by . . . Painter
directed at [Suire] about her buttocks, her chest, and her body, all of a sexually explicit
nature; [c]onstant comments by . . . Painter directed at [Suire] about her clothing, all of a
sexually explicit nature . . . .”
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B. Painter’s Defamation Suit
Painter initially filed his defamation suit against Suire in Louisiana
state court, and Suire, who by that point had become a citizen of Florida,
removed the action to the United States District Court for the Middle District
of Louisiana on August 21, 2012. 3 Between the time the suit was filed and the
time it was removed, Painter was indicted in federal court on 42 counts of
computer fraud, making false statements, and aggravated identity theft, all of
which were later dropped by the government, dismissed by the court, or
resulted in a not guilty verdict from a jury.
On October 2, 2014, the district court ordered the trial on Painter’s
defamation claims against Suire to be bifurcated, with separate juries hearing
the liability and damages phases of the trial. The trial on the liability issues
was conducted between October 7 and 10, 2014, and was to determine whether
Painter had been subjected to defamation when Suire uttered the words
“sexual harassment” and “stalking” in two instances: (1) her state court lawsuit
for injunctive relief and (later) seeking damages, and (2) her statements made
to OIG, which were later included in a search warrant affidavit. Following the
trial, the liability jury was presented with a one-page verdict form asking
whether Painter had proven by a preponderance of the evidence that Suire’s
statements, with respect to OIG’s search warrant and her state court suit, were
false or that she acted in reckless disregard as to the statements’ truth or
falsity. The jury answered “No” as to the statements concerning OIG’s search
warrant application, but yes as to Suire’s statements in her state court suit.
The second phase of the trial, which occurred between August 12 and
August 14, 2015, concerned only the issues of injury and damages. The
3 In addition to his suit against Suire, Painter also filed defamation suits against the
Governor of Louisiana, several state entities, and several state employees in their official
capacities in Louisiana state court on August 19, 2011.
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damages jury responded “No” to the following question: “Do you find Plaintiff,
Murphy Painter, has proven by a preponderance of the evidence, that he
sustained injury to his reputation and/or for mental anguish and/or emotional
distress as a result of specific statements made by Kelli Suire in her State
Court lawsuit?” 4 Because the jury found that Painter had failed to establish
any injury, the district court entered final judgment in favor of Suire,
dismissing all of Painter’s claims. Painter timely appealed, raising three
general challenges: (1) the district court improperly excluded evidence; (2) the
district court improperly instructed the jury; and (3) the jury’s verdict was
biased or otherwise improperly motivated. We address each of these
challenges in turn.
II. EXCLUSION OF EVIDENCE
Under Louisiana law, “[f]our elements are necessary to establish a claim
for defamation: (1) a false and defamatory statement concerning another; (2)
an unprivileged publication to a third party; (3) fault (negligence or greater) on
the part of the publisher; and (4) resulting injury.” Kennedy v. Sheriff of E.
Baton Rouge, 935 So. 2d 669, 674 (La. 2006). The liability jury found that
Painter had established the first three elements, and the damages jury was
tasked with determining whether Painter had established injury and, if so, the
extent of that injury. Painter’s challenges on appeal center on the damages
phase of the trial.
His first challenge concerns three separate evidentiary rulings made by
the district court. Painter argues that the district court improperly excluded
4 After the jury returned its verdict, Painter argued that the verdict was not supported
by the evidence adduced at trial. The district court interpreted this argument as a motion
under Federal Rule of Civil Procedure 50, and denied the motion. Painter also argued that
the jury’s verdict was nonresponsive to the verdict form, as the jury unnecessarily answered
questions on the form. The district court “denie[d] [Painter’s] objection to
nonresponsiveness.”
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evidence from the damages phase when it (1) prevented him from reviewing
defamatory materials with Suire in front of the damages jury; (2) refused to
admit video recordings of local news stories that reported Suire’s defamatory
allegations; and (3) prevented Painter from referencing his criminal trial and
his acquittal in that trial. “We ‘review the trial court’s evidentiary rulings
under an abuse of discretion standard.’” Fairchild v. All Am. Check Cashing,
Inc., 815 F.3d 959, 966 (5th Cir. 2016) (quoting Curtis v. M & S Petroleum, Inc.,
174 F.3d 661, 667 (5th Cir. 1999)). Federal Rule of Civil Procedure 61 further
provides that “[u]nless justice requires otherwise, no error in admitting or
excluding evidence—or any other error by the court or a party—is ground for
granting a new trial, for setting aside a verdict, or for vacating, modifying, or
otherwise disturbing a judgment or order.” Fed. R. Civ. P. 61. And we “must
disregard all errors and defects that do not affect any party’s substantial
rights.” Id.
Turning to Painter’s first evidentiary challenge, we observe no abuse of
discretion in the district court’s evidentiary ruling. On appeal, Painter argues
that the district court erred when it prevented him from reviewing the
following materials with Suire in front of the damages jury: Suire’s affidavit
filed in support of her petition for a temporary restraining order, her amended
petition seeking damages, and prior testimony by both Suire and Painter
concerning the nature of the defamatory statements she made. While all of
this evidence was relevant during the liability phase of the trial, we agree with
the district court that, during the damages phase, the court’s purpose was “to
decide whether or not there was injury and if so the nature and extent of that
injury and whether damages are called for” and that the issue of liability was
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“irrelevant,” as it had already been decided by the first jury. 5 Because the
evidence Painter sought to review with Suire in front of the damages jury was
not relevant to the issue of damages, the district court did not abuse its
discretion by preventing Painter from reviewing these materials. See U.S.
Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 409, 431 (5th Cir. 2014),
as revised (Sept. 2, 2014), cert. denied, 135 S. Ct. 1430 (2015) (“[T]he court did
not abuse its discretion by declining to hear more evidence on a matter that
had already been decided.”); see also Fed. R. Evid. 403 (allowing a court to
exclude evidence if it is “needlessly . . . cumulative”).
With respect to Painter’s second evidentiary challenge—that the district
court refused to admit video recordings of local news stories that reported
Suire’s defamatory allegations—we similarly find no abuse of discretion by the
district court. Painter attempted to admit videos of local news stories that his
daughter had recorded on her home digital recording device. After the district
court correctly noted that these recordings contained hearsay, Painter argued
that they could nevertheless be admitted for several reasons. See Fed. R. Evid.
802. Painter first argued that the videos contained Suire’s statements from
her state court lawsuit and were therefore not hearsay under Federal Rule of
Evidence 801(2). However, the district court correctly noted that the videos
also contained statements by out-of-court declarants, which were hearsay
within the meaning of Rule 801(c). Painter next argued that the videos were
admissible as business records under Rule 803(6)(B). In response to this
argument, the district court noted—and we agree—that Painter’s daughter
was not a proper “custodian” of these records, so the videos could not be
admitted as business records. See Fed. R. Evid. 803(6)(D).
5Moreover, the district court correctly noted that the statements about which Painter
sought to question Suire in front of the damages jury were in the record and that the jury
would be able to read them.
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Finally, Painter argued that the videos were not inadmissible hearsay
because they were not offered “to prove the truth of the matter asserted in the
statement[s]” in the videos, Fed. R. Evid. 801(c)(2), but only to show that
Suire’s statements had been re-publicized. See Thompson v. Bank One of La.,
NA, 134 So. 3d 653, 663 (La. Ct. App. 2014) (“A defendant who utters a
defamatory statement is responsible for all republication that is the natural
and probable consequence of the author’s act.”). With respect to this argument,
the district court explained “even if [Painter was] offering them not for the
truth of the matter asserted, because of the extraneous information in them
and because Ms. Suire doesn’t appear on them . . . they’re more prejudicial than
they are probative.” Given Suire’s absence from these videos and the other
extraneous information contained therein, we agree with the district court that
the videos were more prejudicial than probative. Therefore, the district court
did not abuse its discretion in excluding these videos. See Fed. R. Evid. 403.
Turning to Painter’s final evidentiary challenge—that the district court
improperly prevented him from referencing the results of his criminal trial—
we conclude that the district court committed no reversible error. In granting
Suire’s motion in limine to prevent Painter from “referenc[ing] his acquittal of
his separate federal criminal charges,” the district court “found that, allowing
[Painter] to reference his acquittal of his criminal charges, which did not
include sexual harassment or stalking, would not be relevant in the pending
matter under Rule 401 of the Federal Rules of Evidence.” Additionally, the
court noted the potential for jury confusion and “the fact that [Painter] was
acquitted of unrelated computer crimes ha[d] no bearing on whether he stalked
or sexually harassed [Suire].” We agree with the district court’s reasoning, as
Painter’s criminal charges were, at best, tangentially related to his defamation
suit against Suire. See Fed R. Evid. 401. Allowing him to discuss these charges
and his acquittal would have risked jury confusion, and the district court
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properly avoided this risk by excluding such discussion. See Fed R. Evid. 403.
Overall, we find no abuse of discretion in any of the evidentiary rulings Painter
challenges on appeal. 6
III. JURY INSTRUCTIONS
Painter challenges the jury instructions as failing to properly guide the
jury on defamation under Louisiana law. We review challenges to jury
instructions for abuse of discretion and afford the trial court great latitude in
the framing and structure of jury instructions. United States v. Carrillo, 660
F.3d 914, 925–26 (5th Cir. 2011). “In order to demonstrate reversible error,
the party challenging the instruction must show that the charge ‘creates
substantial and ineradicable doubt whether the jury has been properly guided
in its deliberations.’” Eastman Chem. Co. v. Plastipure, Inc., 775 F.3d 230, 240
(5th Cir. 2014) (quoting Taita Chem. Co. v. Westlake Styrene, LP, 351 F.3d 663,
667 (5th Cir. 2003)). Moreover, “[t]he instructions need not be perfect in every
respect provided that the charge in general correctly instructs the jury, and
any injury resulting from the erroneous instruction is harmless.” Rogers v.
Eagle Offshore Drilling Servs., Inc., 764 F.2d 300, 303 (5th Cir.1985).
The district court instructed the damages jury in the instant case as
follows:
6 We also find that Painter’s substantial rights would not have been affected even
assuming, arguendo, that the district court’s evidentiary rulings were erroneous. See Kelly
v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 361 (5th Cir. 1995) (“Erroneous evidentiary
rulings by the trial court constitute reversible error only when those rulings have affected a
party’s substantial rights.”). If Painter had prevailed on his first evidentiary challenge, his
ability to establish that he was injured as a result of Suire’s defamatory statements would
not have been meaningfully improved, as the nature of Suire’s statements are relevant to
whether they were defamatory, not whether Painter suffered any injury. Had Painter
prevailed on his second challenge, his ability to establish damages would not have been
significantly better because he testified separately about the republication of Suire’s
statements. And finally, if Painter had been able to discuss his criminal trial and subsequent
acquittal, that evidence would not have improved Painter’s ability to establish an injury as a
result of Suire’s defamation, as the charges at that trial were not germane to her statements
concerning stalking and sexual harassment.
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During this second phase of the trial you are not to concern
yourself with the issue of liability, rather, the sole issue that you
will be asked to decide is whether Murphy Painter sustained any
injuries caused by statements made by Ms. Suire in her state court
lawsuit. And if so, the amount of damages, if any, to award Mr.
Painter.
A person who utters a defamatory statement is responsible
for all republication that is the natural and probable consequence
of the author’s act.
The injury resulting from defamatory statements may
include non-pecuniary or general damages such as injury to
reputation, personal humiliation, embarrassment, and mental
anguish. Regardless of the type of injury asserted, however, the
plaintiff must present competent evidence of the injury suffered.
The plaintiff must also demonstrate the defamatory statements
were a substantial factor in causing the harm.
If Murphy Painter has proven by a preponderance of the
evidence that he sustained injuries caused by Kelli Suire, you must
determine the damages to which Murphy Painter is entitled if any.
Painter challenges these instructions, arguing they caused the jury to find that
Painter failed to prove injury as a result of Suire’s defamatory statements. He
argues that this was error because a previous jury had already determined that
Suire had uttered per se defamatory words. And under Louisiana law, when a
plaintiff proves the publication of per se defamatory words, the elements of
falsity, injury, and malice are presumed—although, they may be rebutted by
the defendant. We cannot agree with Painter’s characterization of Louisiana
law and, accordingly, perceive no abuse of discretion in the district court’s jury
instructions.
Assuming that Painter had established that Suire uttered per se
defamatory statements, 7 Painter may still be required to prove that he suffered
7 Under Louisiana law, “[w]ords which expressly or implicitly accuse another of
criminal conduct, or which by their very nature tend to injure one's personal or professional
reputation, even without considering extrinsic facts or surrounding circumstances, are
considered defamatory per se.” Costello v. Hardy, 864 So. 2d 129, 140 (La. 2004). The liability
jury did not explicitly find that Suire’s statements were per se defamatory.
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an injury as a result of those statements under Louisiana law. The Supreme
Court of Louisiana has explained that “[w]hen a plaintiff proves publication of
words that are defamatory per se, the elements of falsity and malice (or fault)
are presumed, but may be rebutted by the defendant . . . [and] [t]he element of
injury may also be presumed.” Costello, 864 So. 2d at 140 (emphasis added).
Thus, the element of injury is not necessarily presumed even if a plaintiff
establishes that the defendant uttered per se defamatory words. See also id.
at 141 (“Regardless of the type of injury asserted, however, a plaintiff must
present competent evidence of the injuries suffered.”); see also Manale v. City
of New Orleans, Dep’t of Police, 673 F.2d 122, 125 (5th Cir. 1982) (“We have
little difficulty in agreeing with the District Court that [the defendants’]
statements were defamatory per se [under Louisiana law]. . . . With malice and
falsity presumed, [the plaintiff] had only to prove injury.”). In addition to
establishing injury, “[a] plaintiff must also demonstrate that the defamatory
statements were a substantial factor in causing the harm.” Costello, 864 So.
2d at 141.
In its instructions, the district court paraphrased the Costello court’s
explanation of the injury element of a defamation claim. Therefore, the district
court properly instructed the jury, and we have no “substantial and
ineradicable doubt [as to] whether the jury has been properly guided in its
deliberations.” Taita, 351 F.3d at 667 (quoting F.D.I.C. v. Mijalis, 15 F.3d
1314, 1318 (5th Cir. 1994)).
IV. THE JURY’S VERDICT
Painter’s final challenge concerns the verdict rendered by the damages
jury. Painter first argues that the evidence he adduced supported his claims
that he suffered mental anguish and harm to his reputation as a result of
Suire’s defamation and that, therefore, the district court should have granted
his motion for judgment as a matter of law. However, Painter failed to raise
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this argument in a motion for judgment as a matter of law under Federal Rule
of Civil Procedure 50(a) before the case was submitted to the jury. Because
Painter failed to raise this argument in a Rule 50(a) motion prior to the
submission of the case to the damages jury and raised it only in a Rule 50(b)
renewed motion for judgment as a matter of law, our review is “only for plain
error.” Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 292 (5th Cir.
2007); see also Md. Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d 701, 707–
08 (5th Cir. 2011). “Under plain error review, we must decide ‘whether there
was any evidence to support the jury verdict.’ . . . If any evidence exists that
supports the verdict, it will be upheld.” Id. (quoting Lincoln v. Case, 340 F.3d
283, 290 (5th Cir. 2003)).
We cannot say that no evidence supported the jury’s verdict. With
respect to Painter’s claim that he suffered mental anguish and emotional
distress, Painter testified that he “ha[d] no mental disorder” as a result of
Suire’s defamatory statements. He also stated that he did not have a
psychological impairment and was not diagnosed by a medical professional
with any kind of disorder. With respect to the damage to Painter’s reputation,
the record contains sufficient evidence from which the jury could have
determined that Painter did not suffer reputational harm as a result of Suire’s
defamatory statements. 8 Based on the existence of some evidence supporting
the jury’s verdict, we decline to disturb that verdict on plain error review.
Painter’s second challenge to the damages jury’s verdict concerns the
way in which the jury completed the verdict form. Specifically, the jury first
8 For example, Painter testified that, in addition to the instant lawsuit, he had filed
suit against the State of Louisiana, the Governor of Louisiana, and other defendants, alleging
that their actions surrounding his termination on August 13, 2010, caused harm to his
reputation. The damages jury could have concluded that these actions, not the defamatory
statements made by Suire, caused Painter’s reputational injury. See Costello, 864 So. 2d at
141 (requiring that a defamation plaintiff establish causation).
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responded “no” to the question of whether Painter had carried his burden to
show that he sustained injury as a result of Suire’s defamatory statements.
Based on this negative response, the jury should have signed the form and
returned it to the court. However, the jury proceeded to other questions,
answering “yes” to the question of whether Painter contributed to his injuries
and stating that Painter was “100%” at fault for any injury he suffered. From
these unnecessary answers, Painter infers that the jury was biased against
him.
It is not clear from the record whether Painter raised these arguments
as part of his Rule 50 motion for judgment as a matter of law or if he was
attempting to move for a new trial because of the jury’s bias. If it is the former,
then we review the district court’s rejection of these arguments for plain error.
Navigant, 508 F.3d at 292. If it is the latter, then our review is for abuse of
discretion. McIver v. Am. Eagle Airlines, Inc., 413 F. App’x 772, 775 (5th Cir.
2011) (per curiam) (unpublished). Under any standard of review, however, the
district court committed no error in rejecting Painter’s arguments. The jury’s
thorough answers to the questions on the verdict form, while unnecessary
based on the instructions on that form, were entirely consistent and support
its finding that Painter failed to establish that he was injured.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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