Estiverne V Times Picayune LLC Anti SLAPP Upheld
Estiverne V Times Picayune LLC Anti SLAPP Upheld
2006-CA-0571
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2005-10344, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
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Judge Roland L. Belsome
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(Court composed of Judge Max N. Tobias Jr., Judge Edwin A. Lombard, Judge
Roland L. Belsome)
Nicolas Estiverne
14355 Cornerstone Village Drive
Apartment 211
Houston, TX 77014
James R. Swanson
Loretta G. Mince
Lance C. McCardle
CORRERO FISHMAN HAYGOOD PHELPS WALMSLEY & CASTEIX
201 St. Charles Avenue
46th Floor
New Orleans, LA 701704600
AFFIRMED
This appeal is taken from the trial court’s granting of a special motion to
strike dismissing Nicolas Estiverne’s (“Mr. Estiverne”) claims against the Times-
FACTS
attorney from an elderly woman, Angelina Neil, suffering from Alzheimer’s and
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Louisiana Code of Civil Procedure Article 971 reads in pertinent part:
A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of
petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of
success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating
the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination
shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be
awarded reasonable attorney fees and costs.
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used it to empty her bank account. In 2003, Mr. Estiverne was criminally charged
Estiverne’s case. The article reported facts contained in the ODC’s Formal
Charge 2 as well as information from the court record of the criminal proceeding.
The article written by Susan Finch was titled “Ex-Lawyer accused of bilking ill
senior; Secret assets drained in ‘90s, relative says”. On June 2, 2005, a second
trial until July 28, 2005. Shortly thereafter, on July 25, 2005, Mr. Estiverne
reached a plea bargain with the district attorney’s office. Under the plea
agreement, Mr. Estiverne pled guilty to the crime of theft under $100, La. R.S.
prison, suspended, and 2 years inactive probation, was ordered to pay restitution in
On August 2, 2005, Mr. Estiverne filed a lawsuit, alleging that The Times-
Estiverne’s guilty plea and sentence, “Ex-Lawyer pleads guilty to bilking senior”.
Mr. Estiverne supplemented and amended his petition asserting that the third
article was defamatory. The Times-Picayune responded to the petition and its
supplementation with special motions to strike pursuant to article 971. The trial
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The ODC Formal Charge is a public record pursuant to Louisiana Supreme Court Rule XIX, section 16.
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court granted the motion, dismissing Mr. Estiverne’s claims against The Times-
Picayune.
On appeal Mr. Estiverne claims that the trial court’s ruling is contrary to the
of error contains a broad statement, the only legal error addressed by Mr. Estiverne
was that the affidavit of The Times-Picayune’s head librarian, Nancy I. Burris, was
not authorized by anyone in the corporation and thus, legally defective. The
articles that are the subject of this lawsuit. As the head librarian she attested to the
fact that she is entrusted with the care, custody and control of The Times-
merit.
Louisiana Code of Civil Procedure article 971 requires that a defamation suit
claim. In order for Mr. Estiverne to succeed in his defamation claim he must prove
that The Times-Picayune, with actual malice or other fault, published a false
statement with defamatory words, which caused Mr. Estiverne damages. See
Sassone v. Elder, 626 So.2d 345, 350 (La. 1993); Cangelosi v. Schwegmann Bros.
Giant Super Markets, 390 So.2d 196, 198 (La.1980); Ritchey v. Azar, 383 So.2d
360 (La.1980). The trial court was presented with all the documents evidencing
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showed that all the information in the articles was extracted from public records.
Times-Picayune, nor was he able to present any evidence that would form a prima
facie case for the allegations asserted in his petition other than his own deposition
able to meet his burden of proof at trial.” Sassone, 626 So.2d at 351. Mr.
Estiverne did not provide the quality or quantity of evidence to establish a prima
Mr. Estiverne also suggests that because he filed his lawsuit in forma
pauperis, the court should not have awarded attorney’s fees to The Times-
Picayune. Clearly the statute calls for the prevailing party to be awarded
attorney’s fees and costs. See La. C.C.P. art. 971(B). We recognize that in Stern v.
Doe, 2001-0914 (La. App. 4 Cir. 12/27/01), 806 So.2d 98, this Court found a
failure to assess attorney’s fees against a plaintiff in forma pauperis, under article
971, did not constitute an abuse of the judicial process. However, there is no
Upon review of the trial court’s judgment for legal defects, we find none.
AFFIRMED
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