David Lacerte v. State of Louisiana, Daryl Purpera, individually and in his capacity as Louisiana Legislative Auditor, Stephen Street, Jr., individually and in his official capacity as State Inspector General

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2020 CA 1001
DAVID LACERTE
VERSUS
STATE OF LOUISIANA, DARYL PURPERA, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS LOUISIANA LEGISLATIVE AUDITOR,
STEPHEN STREET, JR., INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS STATE INSPECTOR GENERAL
Judgment Rendered. SEP 2 7 2021
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. C654973
The Honorable William A. Morvant, Judge Presiding
Jill L. Craft Counsel for Plaintiff/Appellant
W. Brett Conrad, Jr. David Lacerte
Baton Rouge, Louisiana
Jeff Landry Counsel for Defendant/ Appellee
Attorney General Stephen Street, Jr., individually
Preston J. Castille, Jr. and in his official capacity as
Katia D. Bowman State Inspector General
Special Assistant Attorneys General
Baton Rouge, Louisiana
BEFORE: THERIOT, PENZATO, AND WOLFE, JJ.
THERIOT, J.
This appeal arises from a trial court judgment awarding attorney fees and
costs to defendant, Stephen Street, individually and in his official capacity as State
Inspector General, following a judgment granting Street' s La. C. C. P. art. 971
special motion to strike. For the following reasons, we reverse.
FACTS AND PROCEDURAL HISTORY
David Lacerte, former Secretary of the Louisiana Department of Veterans
Affairs, filed a defamation suit against the State of Louisiana; Daryl Purpera,
individually and in his official capacity as Louisiana Legislative Auditor; and
Stephen Street, individually and in his official capacity as State Inspector General.
Lacerte' s defamation claims arose from a joint investigation conducted by the
Legislative Auditor and the Inspector General, which culminated in a report
published by the defendants via press release. Lacerte alleged that the report and
press release wrongfully accused him of criminal conduct, including falsifying
public records by providing an inaccurate military biography on the Louisiana
Department of Veterans Affairs' website and engaging in questionable hiring,
spending, travel, and organizational practices during his tenure with the
Department of Veterans Affairs.
The defendants filed a joint special motion to strike pursuant to La. C. C. P.
art. 971, which provides in part that "[ 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). The joint motion sought to dismiss Lacerte' s suit for
defamation in its entirety, against all defendants in their individual and official
capacities, on the grounds that he could not meet his burden of proving a likelihood
F)
of success on the merits of his defamation claim. Lacerte opposed the motion and
filed an expedited motion to strike, contending that the State of Louisiana and
Purpera and Street in their official capacities have no constitutional rights and,
thus, are not " persons" entitled to relief under Article 971. Lacerte also asserted
that the joint motion was untimely under Article 971( C)( 1). By judgment dated
May 15, 2019, the trial court denied Lacerte' s expedited motion to strike and
granted the defendants' joint special motion to strike. Lacerte appealed this
judgment, and the defendants answered the appeal.
While the appeal of the May 15, 2019 judgment was pending, Street,
individually and in his official capacity as Inspector General, filed a motion for
attorney fees and costs pursuant to Article 971( B), which provides that the
prevailing party on a special motion to strike shall be awarded reasonable attorney
fees and costs. Following a hearing, the trial court signed a judgment on June 22,
2020 in favor of Street, individually and in his official capacity as Inspector
General, awarding attorney fees of $58, 466. 25 and costs. Lacerte filed the instant
appeal, arguing that the trial court erred in awarding attorney fees and costs to
Street.'
On January 4, 2021, this court rendered judgment reversing the trial court' s
May 15, 2019 judgment. Considering the reversal of the judgment granting the
defendants' Article 971 special motion to strike, defendants' answer to the appeal
requesting additional attorney fees and costs was denied. See Lacerte v. State,
2019- 1401, pp. 18- 19 ( La.App. 1 Cir. 1/ 4/ 21), 317 So. 3d 763, 776, writ denied,
2021- 00193 ( La. 3/ 23/ 21), 313 So. 3d 272.
The June 22, 2020 judgment now before us on appeal granted Street' s
motion for attorney fees and costs because Street was a prevailing party on an
1 Street answered the appeal, seeking additional attorney fees and costs for work done on appeal.
However, Street later filed a Motion to Withdraw/Dismiss Answer to Appeal, which was granted
by this court on June 30, 2021.
3
Article 971 special motion to strike. However, considering our reversal of the trial
court' s judgment granting the special motion to strike, and the Louisiana Supreme
Court' s denial of the supervisory writ application, we must reverse the trial court' s
judgment awarding Street attorney fees and costs pursuant to Article 971( B).2
CONCLUSION
For the reasons set forth herein, the June 22, 2020 trial court judgment in
favor of Street is reversed. Street' s motion to vacate/ dismiss judgment is denied.
Costs of this appeal in the amount of $ 1, 551. 50 are assessed to Street, in his
official capacity as Louisiana Inspector General.
REVERSED.
2 On July 19, 2021, Street filed a Motion to Vacate/ Dismiss Judgment, requesting that this court vacate or dismiss
the trial court' s June 22, 2020 judgment with prejudice. In light of our disposition of this matter, Street' s motion is
denied.
C!