DAVID LACERTE v. 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 (2025)

The plaintiff/appellant, David LaCerte, has appealed the judgment of the Nineteenth Judicial District Court, which granted summary judgment in favor of the defendant/appellee, Stephen Street, Jr., individually and in his official capacity as Inspector General for the State of Louisiana. For the following reasons, we reverse the judgment of the district court and remand for further proceedings in conformity with this opinion.

FACTS AND PROCEDURAL HISTORY 2

David LaCerte, a former United States Marine, served as Secretary of the Louisiana Department of Veterans Affairs (LDVA) from June 2014 to October 2015. Prior to this, Mr. LaCerte served as Interim secretary and Deputy Secretary of the Idva.

On January 31, 2017, Mr. LaCerte filed a defamation suit against Daryl Purpera, individually and in his official capacity as Louisiana Legislative Auditor (LLA); Stephen Street, Jr., individually and in his official capacity as State Inspector General; and the State of Louisiana. Mr. LaCerte's defamation cause of action arose out of a joint investigation conducted by the LLA and the Office of the Inspector General (OIG) that culminated in a report published by the defendants, via a press release, on February 1, 2016. Mr. 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 LDVA's website and engaging in “questionable” hiring, spending, travel and organizational practices during his tenure with the LDVA.

After answering the petition, Mr. Purpera, individually and in his official capacity, filed an exception raising the objection of no cause of action based on legislative immunity. The exception was granted as to the claim for defamation arising out of the joint investigation report but was denied as to claims arising out of the press release.³

Shortly thereafter, on October 30, 2018, the defendants filed a joint special motion to strike pursuant to La. C.C.P. art. 971. The defendants moved to dismiss Mr. LaCerte's suit for defamation in its entirety against all defendants in their individual and official capacities, asserting that he could not meet his burden of proving a likelihood of success on the merits of his defamation claim. As an alternative to their request for complete dismissal, the defendants asserted an exception raising the objection of no cause of action to dismiss Mr. LaCerte's claims against Mr. Street and Mr. Purpera in their individual capacities.

Mr. LaCerte opposed the defendants’ Article 971 motion and filed an “Expedited Motion to Strike.” Mr. LaCerte argued that the defendants’ motion, filed more than twenty months from the date of service of the petition, was untimely per Article 971(C)(1), which provides, in part, that a motion may be filed within ninety days of service of the petition. Mr. LaCerte further argued that the State as well as Mr. Street and Mr. Purpera in their official capacities have no constitutional rights and, thus, were not “persons” for purposes of Article 971. Accordingly, Mr. LaCerte maintained that these defendants are not entitled to relief on their special motion to strike.

A hearing on the defendants’ Article 971 motion and Mr. LaCerte's motion to strike same was held on April 29, 2019. After first hearing argument on Mr. LaCerte's motion, the trial court ruled in favor of the defendants, finding the special motion to strike was timely filed in light of the case's procedural history and rejecting Mr. LaCerte's argument that the State and official capacity defendants are not “persons” for purposes of Article 971. The court thereafter heard argument on the defendants’ Article 971 motion before granting the motion from the bench and providing oral reasons for ruling.

Mr. LaCerte appealed the aforementioned ruling, maintaining that the trial court erred by denying his motion to strike and by granting the defendants’ Article 971 motion. On appeal, this court reversed the ruling of the trial court and remanded the matter for further proceedings in conformity with this court's ruling. See LaCerte v. State, 2019-1401 (La. App. 1 Cir. 1/4/21), 317 So.3d 763, writ denied, 2021-00193 (La. 3/23/21), 313 So.3d 272.⁴

On April 18, 2023, the LLA and Mr. Purpera, in his personal capacity, filed a motion for summary judgment, claiming that they were immune from the defamation suit since they acted in their capacities as state agencies, and that none of the statements that Mr. LaCerte claimed as defamatory were made with actual malice.⁵ On April 21, Mr. Street filed a separate motion for summary judgment, both individually and in his official capacity as State Inspector General, arguing there were no genuine issues of material fact and he was entitled to judgment as a matter of law. Mr. Street attached numerous exhibits to his motion for summary judgment.

Following a hearing on May 30, 2023, the trial court signed a judgment on June 15, 2023, in which it granted the motion for summary judgment filed by Mr. Street, dismissing all of Mr. LaCerte's claims against him in both his individual and official capacities.⁶ Mr. LaCerte has timely appealed this judgment.⁷

ASSIGNMENTS OF ERROR

Mr. LaCerte submits the following assignments of error:

1. The trial court erred by granting summary judgment in favor of the State of Louisiana, through the OIG, because the defendants never moved for summary judgment.

2. There should have been a legal presumption in favor of Mr. LaCerte that he established a “probability of success” on the motion for summary judgment.

3. The contrary attestations of Chris Magee established disputed issues of fact as to the elements of falsity and fault.

4. The trial court erred by overruling Mr. LaCerte's objections to Jesse Perry's hearsay attestations.

5. The trial court erred by granting summary judgment as there are genuine issues of material fact precluding summary judgment.

DISCUSSION

The first assignment of error, Mr. LaCerte contends that the trial court erred by signing an August 1, 2024 judgment granting summary judgment in favor of the OIG and dismissing Mr. LaCerte's claims against the OIG, because the OIG did not move for summary judgment. However, the August 1, 2024 judgment referenced in this assignment of error is not before this court on appeal.

Also, Mr. LaCerte only requested service on Mr. Purpera as Legislative Auditor, Mr. Street as Inspector General, and the State through the Commissioner of the Division of Administration.⁸ In claims against the State, process shall be served upon the head of the department concerned, the Office of Risk Management, and the Attorney General. La. R.S. 39:1538(D). Mr. LaCerte did not request service as required by La. R.S. 39:1538(D) in order to sue the State or the OIG. Furthermore, the June 15, 2023 judgment on appeal grants summary judgment in favor of Mr. Street only. We therefore find that the judgment on appeal is not applicable to the OIG as it was never named as a party in the instant case.

In the second assignment of error, Mr. LaCerte argues that the trial court erred by failing to impose a legal presumption in his favor based on this court's denial of the defendants’ special motion to strike. To support his claim, Mr. LaCerte cites La. C.C.P. art. 971(A), which applies to special motions to strike. The Article states, in pertinent part:

(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.

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(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.

This Article, known as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, permits special motions to strike causes of action arising from acts in furtherance of constitutional free speech and petition rights. See Stabiler v. Louisiana Business, Inc., 2016-1182 (La. App. 1 Cir. 9/26/17), 232 So.3d 555, 557 n.1, writ denied, 2017-1824 (La. 12/15/17), 231 So.3d 639. It was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Stabiler, 232 So.3d at 560. According to the editor's notes for La. C.C.P. art. 971, the special motion to strike establishes a specialized defense motion akin to a motion for summary judgment for defamation and other actions, allowing a more liberal time for bringing the motion than the motion for summary judgment allows.

Mr. LaCerte argues in his brief that he established a probability of success on the merits of his claim because the defendants’ special motion to strike was denied. This court reversed the trial court's granting of the defendants’ special motion to strike in Lacerte v. State, 2019-1401 (La. App. 1 Cir. 1/4/21), 317 So.3d 763, writ denied, 2021-00193 (La. 3/23/21), 313 So.3d 272. In that case, we stated the mover's burden is twofold: first, the mover must 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; second, if the mover satisfies this initial burden of proof, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. LaCerte, 317 So.3d at 768, citing Regan v. Caldwell, 2016-0659 (La. App. 1 Cir. 4/7/17), 218 So.3d 121, 126, writ denied, 2017-0963 (La. 4/6/18), 239 So.3d 827.

In LaCerte, 317 So.3d at 773, this court found that the defendants, in their official capacities, did not have a constitutional right to free speech and therefore failed to meet their burden on the motion. Consequently, the issue of whether Mr. LaCerte had a probability of success in his claim was not reached. We do not find that Mr. LaCerte's victory over the defendants’ special motion to strike automatically creates the legal presumption of a probability of success if the merits of the case were not addressed with regard to that presumption.

Furthermore, despite the special motion to strike's similarity to a motion for summary judgment, we can find no legislation or jurisprudence that extends the “probability of success” presumption of La. C.C.P. art. 971 to motions for summary judgment. Rather, we have found jurisprudence that differentiates the two:

In response to the growing prevalence of [SLAPP] suits and recognizing that traditional legal remedies such as abuse of process or malicious prosecution claims and motions for summary judgment were inadequate tools to ameliorate the problem, states enacted legislation creating the special motion to strike. This extraordinary procedural remedy limits discovery, dismisses meritless claims quickly, and awards attorney's fees to the prevailing party.

Shelton v. Pavon, 2017-0482 (La. 10/18/17), 236 So.3d 1233, 1240.

The article governing motions for summary judgment contains unique rules for discovery and does not contain a mechanism for awarding attorney fees. See La. C.C.P. art. 966. Based on the legislative intent behind La. C.C.P. art. 971, the jurisprudence that distinguishes the special motion to strike from the motion for summary judgment, and the absence of a legal or factual finding that Mr. LaCerte had a probability of success in his claim, we refuse to extend that presumption to the instant case. The previous appeals in the instant case involved special motions to strike, where the “probably of success” presumption would have applied, but it does not apply to the instant appeal.

In assignments of error three and four, Mr. LaCerte argues that attestations made by two affiants respectively established a genuine issue of material fact and should have been excluded due to hearsay testimony.

An affidavit of Chris Magee was attached as an exhibit to both of the defendants’ memorandums in support of summary judgment. Mr. Magee was also deposed by Mr. LaCerte on April 4, 2019. That deposition is attached to Mr. LaCerte's memorandum in opposition to summary judgment. Mr. LaCerte contends that the affidavit and deposition are contradictory in several areas, and that these contradictions create a genuine issue of material fact.

The record contains two separate affidavits by Mr. Magee. The affidavit attached to Mr. Street's memorandum in support of summary judgment is dated October 25, 2018. According to that affidavit, Mr. Magee has been employed by the LLA since June 19, 2012. In 2015, he was the auditor in charge of investigating Mr. LaCerte while he was employed by the LDVA. Mr. LaCerte argues that this affidavit contradicts Mr. Magee's second affidavit, dated April 14, 2023, in several areas. This more recent affidavit, however, is not attached to Mr. LaCerte's memorandum in opposition to summary judgment. Pursuant to La. C.C.P. art. 966(D)(2), the trial court may only consider those documents filed in support of or in opposition to the motion for summary judgment. Successions of Millet, 2021-0355 (La. App. 1 Cir. 12/22/21), 340 So.3d 252, 259. If the trial court considered the April 14, 2023 affidavit of Mr. Magee at all, it was erroneous to do so; furthermore, we shall not consider that affidavit in our review of the instant case.

However, Mr. Magee's deposition was properly attached to Mr. LaCerte's opposition to summary judgment, and we shall consider whether it is contradictory to Mr. Magee's October 25, 2018 affidavit. In his brief, Mr. LaCerte cites one specific instance where he alleges Mr. Magee's October 25, 2018 affidavit contradicts his deposition testimony. He references paragraphs ten and eleven of the affidavit:

10. To determine the validity of claims in Mr. LaCerte's biography, I reviewed a copy of Mr. LaCerte's Certificate of Release or Discharge from Active Duty form [DD214] ․ as well as other military records.

11. Through my review of military records and other documents, I learned that LLA auditors contacted a Freedom of Information Act (“FOIA”) [a]nalyst at the Commandant of the Marine Corps. According to the interview notes related to that contact, Mr. LaCerte's DD214 did not support the claims made in his biography. Specifically, the FOIA analyst informed investigators and auditors that, had Mr. LaCerte's biography been accurate, he should have received more awards and, at minimum, the Global War on Terrorism Service Medal.

Mr. LaCerte states the aforementioned paragraphs contradict the following testimony from Mr. Magee's deposition:

A. The [DD214] is the discharge, or papers for. And what is included in the [DD214], and the entire service record that we got from the [FOIA analyst], would detail what actions or what types of service were conducted by Mr. LaCerte while he was in the military.

Q. When did you get the, quote, entire service record under the [FOIA]?

A. I believe it was in December of 2015.

Q. And you got, what? From whom?

A. We received the [DD214], as well as other documents.

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Q. Was that [Mr. LaCerte's] entire service record, or was it redacted for the purposes of secrecy?

A. The way it was given to us, we believed that it was his entire service record․ Because that's what the [FOIA analyst] told us.

Q. And what exactly in the service record, if you know ․ would have confirmed [Mr. LaCerte's] engaging in secret operations in Afghanistan?

A. Well, a few statements within the biography. One in particular about interrogation, from the people with military experience on the team, and with [individuals making allegations against Mr. LaCerte]․ In there, if Mr. LaCerte was a part of, say an interrogation team, that there would be interrogation training listed in the training box on that [DD214]. But there was not.

Mr. LaCerte claims the contradiction between the affidavit and the deposition is that, in the affidavit, Mr. Magee stated he reviewed military records and other documents and found that they did not support the claims made in Mr. LaCerte's LDVA website biography. After speaking to the FOIA analyst, Mr. Magee learned that if Mr. LaCerte's biography were accurate, he would have received more awards for his service. In contrast, Mr. LaCerte states that in Mr. Magee's deposition, he merely “believed” he had received Mr. LaCerte's entire service record, based on his conversation with the FOIA analyst, and that any information concerning secret operations came from Mr. LaCerte's biography and those individuals making allegations against Mr. LaCerte. Mr. Magee further stated that if Mr. LaCerte had participated in interrogations in Afghanistan, the DD214 would have at least indicated that he had received interrogation training, but the form did not indicate any such training.

We find no contradiction between these sections of Mr. Magee's affidavit and deposition. Although both are stated differently, they both indicate that Mr. Magee received and reviewed the entire military record that was given to him by the FOIA analyst. Upon his review of those records, he found that they did not facially match what Mr. LaCerte had written in his biography, and, based on what he learned from the FOIA analyst, Mr. LaCerte would have had more training and awards in his record if he had actually done all of what he had written in his biography. We therefore do not find enough of a contradiction in these portions of the affidavit and deposition to amount to a genuine issue of material fact. Mr. LaCerte cites no other purported contradictions between the affidavit and the deposition, and, upon our own review of them, we cannot find any other contradictory sections that could be considered a genuine issue of material fact.

Mr. LaCerte argues in his brief and memorandum in opposition to summary judgment that certain paragraphs in the affidavit of Jesse Perry, which was attached to Mr. Street's memorandum in support for summary judgment, are hearsay statements and the trial court erred by not excluding them from the record.⁹

Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. La. C.E. art. 801(C). With respect to affidavits submitted in support or opposition of summary judgments, they shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to matters stated therein. La. C.C.P. art 967(A). Personal knowledge encompasses only those facts that the affiant saw, heard, or perceived with his own senses. Unifund CCR Partners v. Perkins, 2012-1851 (La. App. 1 Cir. 9/25/13), 134 So.3d 626, 631.

The requirement of personal knowledge is not satisfied by the mere statement that the affidavit is made on “personal knowledge” since that would tend to make the affiant both judge and witness. Perkins, 134 So.3d at 631. The requirement that the affidavit show affirmatively that the affiant is competent to testify to the matters stated therein enables the court to make a determination as to the competency of the affiant as a witness to the material fact at issue. Perkins, 134 So.3d at 631. An affirmative showing of competency cannot be established without a predicate showing of personal knowledge. Otherwise, personal knowledge may be passed on hearsay or other incompetent evidence. Perkins, 134 So.3d at 631-632.

In his affidavit, Mr. Perry testified that he formerly worked for the OIG in the capacity of a law enforcement officer and investigator, and had personal knowledge of the facts contained in his affidavit. He actively investigated the complaint against Mr. LaCerte, obtained and reviewed documents, and interviewed LDVA employees, beginning in or around January of 2015. In his brief, Mr. LaCerte alleges that paragraphs five through ten, fourteen, fifteen, seventeen through nineteen, twenty-one, and twenty-five through twenty-seven contain hearsay evidence. We will review each paragraph individually to determine whether or not these paragraphs contain hearsay or any otherwise incompetent evidence.

Paragraph five of the affidavit states, in pertinent part:

[I]n or around May 2015, the OIG received complaints from an LDVA employee and a veteran, respectively, challenging Mr. LaCerte's biography and alleging that Mr. LaCerte falsified his military biography posted on the Governor's Office and/or LDVA website(s). The LDVA employee also complained about Mr. LaCerte's improper travel practices and his improper use of a vehicle purchased with federal grant funds to service a veterans [sic] cemetery in Slidell, Louisiana.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry is presenting the complaints not to assert their truth, but to show that these complaints were added to the investigation he had initiated into the LDVA in or around January of 2015.

Paragraph six states:

With respect to the complaint regarding Mr. LaCerte's military record, the OIG investigators reached out to a number of veterans in an effort to ascertain the accuracy of Mr. LaCerte's biography. On or about May 21, 2015, the investigators also contacted the Naval Criminal Investigative Service (NCIS) Office in New Orleans, who then identified additional veterans who were believed to have served with Mr. LaCerte or otherwise knew of his military service. Despite all of those efforts, the investigators were unable to conclusively verify the accuracy of Mr. LaCerte's military record, as reflected in his biography.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry does not quote or otherwise relate the statements of others, but merely relates the actions that the OIG investigators and NCIS during the referenced phase of the investigation.

Paragraph seven states, in pertinent part:

[D]uring the investigators’ meetings with NCIS and the Marine Corps Center [Judge Advocate General (JAG)] at the Naval Support Activity in Algiers, Louisiana, on or about June 2, 2015, both entities relayed that Mr. LaCerte's service record did not support the military service cited in his biography.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry does not quote or otherwise relate the statements of others, but relates what he discovered in this phase of the investigation, without asserting that what he discovered was true.

Paragraph eight states:

While the investigation relating to the other LDVA-related issues was under way [sic], on or around June 30, 2015, yet another LDVA employee came forward with a new complaint regarding the fall—and alleged cover-up of the fall—of a resident at the Louisiana War Veterans Home in Jackson, Louisiana (the “Jackson Home”).

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry is presenting this complaint not to assert its truth, but to show that it was added to the investigation.

Paragraph nine states:

During our interviews of LDVA employees regarding the fall and cover-up allegations at the Jackson Home in the Summer and Fall of 2015, complaints raised by LDVA employees and/or through anonymous tips began to trickle in, identifying additional areas of possible violations by the LDVA. However, the complaints by LDVA employees and veterans regarding the LDVA's administration and/or Mr. David LaCerte increased in number and frequency following Mr. LaCerte's resignation in October 2015, thereby further broadening the scope of the OIG's investigation.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry does not relate the content of the tips and complaints or assert that they were true, but merely states the impact that those allegations had on the ongoing investigation.

Paragraph ten states:

The LDVA-related complaints received by the OIG in the Summer and Fall of 2015 included: (1) the fall and subsequent death of a resident of the Southeast Louisiana War Veterans Home in Reserve, Louisiana (the “Reserve Home”) and the cover-up of this incident by the nurse involved; (2) the theft of funds of a resident of the Northeast War Veterans Home in Monroe, Louisiana (“Monroe Home”) by the Assistant Nursing Home Administrator; (3) Mr. LaCerte's improper contracting of Arrow Energy for the purpose of relocating the Jackson Home to the USS Kidd location in Baton Rouge with federal funds and his use of Arrow Energy regarding services involving one of the veteran cemeteries; (4) Mr. Lacerte's hiring of Bradley Lemoine in a manner that contradicted civil service hiring policies; (5) travel practices by Mr. LaCerte and his staff that exceeded the travel guidelines set forth by the Division of Administration; and (6) the purchase of an SUV with federal cemetery grant proceeds for the exclusive use of Mr. LaCerte and/or his office.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry relates the nature of the complaints without quoting or otherwise relating the statements of the complainants, and does not assert that any of the complaints are true.

Paragraph fourteen states:

With respect to the allegations of Mr. LaCerte's improper use of federal grant funds to purchase a Ford Expedition for his own use and/or that of his office, the OIG interviewed employees from the LDVA and Division of Administration and also received documents from these same sources in or around July and August 2015. The OIG also later sat in on interviews of LDVA witnesses by the LLA on this same issue.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry is merely relating the actions the OIG took in the course of their investigation of the referenced complaint.

Paragraph fifteen states:

The OIG learned, based on all this evidence, that the Ford Expedition requested by [Mr.] LaCerte and his office from February to April 2014 was allegedly intended to perform duties needed to sustain daily operations at the Southeast Louisiana Veterans Cemetery in Slidell, Louisiana, including transporting the families of deceased veterans within the cemetery, transporting administrative personnel and routine facility upkeep. It is based on this stated purpose that [Mr.] LaCerte's request for this vehicle was approved by the Division of Administration in April of 2014. The documents attached hereto as “Exhibit 1” are true and correct copies of the documents obtained by the OIG regarding the vehicle and the approval for its purchase.10

We can find no hearsay or otherwise incompetent evidence in Mr. Perry's statement. He relates that, while an investigator for the OIG, his office obtained information from Mr. LaCerte and his office relating to the Division of Administration's approval and the LDVA's purported purpose for purchasing the aforementioned vehicle. The attached exhibit that he asserts as true was not authored by him or his office. Ostensibly, the letter is hearsay; however, we find it falls under the hearsay exception of La. C.E. art. 803(8)(i), as it is a statement of a public office relating a regularly conducted and recorded activity, to wit, the Division of Administration's approval of an expenditure of another state agency. Furthermore, this paragraph corroborates Mr. LaCerte's own explanation for the purchase of the vehicle.

Paragraph seventeen states:

In furtherance of the OIG's investigation into the June 30, 2015 complaint regarding the fall and [cover-up] at the Jackson Home, from July through approximately October 2015, we conducted witness interviews—including interviews of LDVA employees and investigators with the Louisiana State Board of Nursing—and further sought, obtained and reviewed documents provided by the LDVA pursuant to a search warrant for medical and other records related to the fall and/or a subpoena duces tecum to the Louisiana State Board of Nursing.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry states the actions taken by his office, without relating any content from the interviews or obtained documents.

Paragraph eighteen states:

Based on this evidence, we learned that the original incident report regarding a patient's fall occurring on March 29, 2015 was deleted by the Director of Nursing at the Louisiana War Veterans Home in Jackson, Louisiana, as well as an additional [twenty-four] incident reports. [Three] of the [twenty-four] counts were determined to be duplicates. Additional records obtained in 2016 were consistent with these findings.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry is relating his personal knowledge he obtained from the OIG investigation.

Paragraph nineteen states:

On September 24, 2015, [the] LDVA headquarters admitted that it dropped the ball relative to the investigation of the deleted report regarding the fall of the resident at the Jackson Home, as it did not get sufficiently involved in the investigation until after the Louisiana State Board of Nursing got involved.

This paragraph contains hearsay evidence, in that it relates a statement not made by Mr. Perry, which would not have been his personal knowledge, that he is asserting as true. Paragraph nineteen therefore should not have been considered by the trial court.

Paragraph twenty-one states:

In furtherance of our investigation into the complaint received in October 2015 regarding the theft of resident funds at the Monroe Home, from October 2015 through September 2016, we conducted witness interviews and sought, obtained and reviewed documents submitted by the LDVA and/or obtained through several subpoenas duces tecum.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry is relating his and his office's actions in the OIG investigation.

Paragraph twenty-five states:

In furtherance of our investigation into the complaint received in October 2015 regarding the fall, subsequent death and related [coverup] at the Southeast Louisiana War Veterans Home in Reserve, Louisiana, the OIG conducted witness interviews along with the Louisiana Board of Nursing and sought, obtained and reviewed documents as well as video footage from February through June 2016.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry is relating his and his office's actions in the OIG investigation.

Paragraph twenty-six states:

Based on this evidence, we learned that a patient of the Reserve Home sustained a fall on the night of January 8, 2015 and that the LPN on duty neglected to conduct the LDVA policy-required periodic neuro checks on the patient. Hours later, the patient died. Following the patient's death, the LPN entered false neuro checks into the electronic system in an attempt to conceal her failure to conduct the required neuro checks.

We can find no hearsay or otherwise incompetent evidence in this paragraph. Mr. Perry relates his personal knowledge derived from the investigations of his own office. He relates the conclusions his office made from its investigation, without relying upon direct statements made by witnesses or found in any obtained documents.

Paragraph twenty-seven states:

Neither the [United States Department of Veterans Affairs], the coroner nor the family [of the resident] was timely notified of the circumstances surrounding the resident's death.

We cannot determine whether this statement is hearsay or not, since it does not indicate whether it is Mr. Perry's personal knowledge or is derived from the statement(s) of others. Such a factual determination should be left to the trier of fact.

Based on our review of Mr. Perry's affidavit, we find that only paragraph nineteen contains a statement that was clearly not based on his personal knowledge, rendering it incompetent as evidence for the purpose of the motion for summary judgment. The trial court therefore abused its discretion if it considered paragraph nineteen of Mr. Perry's affidavit.

In the fifth assignment of error, Mr. LaCerte argues that the trial court erred in granting summary judgment in favor of Mr. Street, as there are genuine issues of material fact. On appeal, summary judgments are reviewed de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Draughn v. State Farm Insurance Company, 2017-0069 (La. App. 1 Cir. 1/10/18), 2018 WL 360547, *4 (unpublished opinion). A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

In its oral reasons, the trial court found that Mr. LaCerte could not meet his burden of proof to defeat the motion for summary judgment, especially on the element of malice. On a motion for summary judgment, the burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue before the court on the motion for summary judgment, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point to the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Jackson v. City of Zachary, 2017-1583 (La. App. 1 Cir. 8/6/18), 256 So.3d 323, 326.

“By definition, a statement is defamatory if it tends to harm the reputation of another so as to lower the person in the estimation of the community, deter others from associating or dealing with the person, or otherwise expose the person to contempt or ridicule.” Johnson v. Purpera, 2020-01175 (La. 5/13/21), 320 So.3d 3 74, 3 89 (quoting Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669, 674). “Thus, a communication which contains an element of personal disgrace, dishonesty, or disrepute undoubtedly satisfies the definition of defamatory.” Johnson, 320 So.3d at 389 (quoting Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 73 7 So.2d 706, 716).

Emanating from La. C.C. art. 2315, defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Johnson, 320 So.3d at 386. Four 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. Johnson, 320 So.3d at 3 86-87. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Johnson, 320 So.3d at 387. Given the foregoing, in order to prevail on a defamation claim, a plaintiff must prove “that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” Johnson, 320 So.3d at 387 (quoting Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 559.)

Whether a communication is capable of a particular meaning and whether that meaning is defamatory is a question for the trial court. Johnson, 320 So.3d at 388. As with the determination of whether words are capable of a particular meaning and whether that meaning is defamatory, the determination of whether a plaintiff is a “public official” is one reserved for the trial court. Johnson, 320 So.3d at 388.

Although the trial court made no clear finding that Mr. LaCerte was a public official at the time he committed the acts alleged by the defendants, there hardly appears to be any dispute about this issue in the record. A public official is someone who holds a governmental position that invites public scrutiny and discussion and has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it. Hatfield v. Herring, 54,048 (La. App. 2 Cir. 8/11/21), 326 So.3d 944, 955, writ denied, 2021-01377 (La. 12/7/21), 328 So.3d 424. Mr. LaCerte was Secretary of the LDVA in 2015 when the LLA and OIG began their investigations into his official activities as Deputy Secretary and Secretary of the LDVA. Although Mr. LaCerte resigned in October of 2015, the joint investigation and press release were published on or about February 1, 2016. Based on these undisputed facts, we find that Mr. LaCerte was a public official for the purpose of the motion for summary judgment.

We also find that the language used by the defendants in the publications meets the definition of “defamatory.” Clearly, the accusations levied against Mr. LaCerte, regardless of their truth, could damage his reputation in his community and deter others from associating with him. Mr. LaCerte attached to his memorandum in opposition to summary judgment his own affidavit in which he stated that the defamatory language in the publications have caused him emotional distress, hampered his ability to gain another position in state government, negatively impacted his post-traumatic stress disorder, and negatively impacted his relationship with his family.

However, the issue of whether the defamatory language is false and made with malicious intent is factually disputed. In his petition, Mr. LaCerte claimed that the defendants’ publications were made with actual malice or reckless indifference to the truth, and that he could have verified the truth of his military record if he were given the opportunity. In his brief, Mr. LaCerte claims that the defendants knew that much of the information they had obtained was false, yet they published the information despite this knowledge.

Mr. LaCerte attached to his memorandum in opposition to summary judgment several exhibits to refute various points made in the defendants’ publications. One such exhibit is a report made by Larry LaBorde, a private investigator hired by Mr. LaCerte in response to the theft incident that took place in the Monroe Home. Mr. LaBorde found that there was a misappropriation of a resident's funds by an employee at the Monroe Home. Mr. Magee stated in his deposition that when he questioned Mr. LaCerte about this matter, Mr. LaCerte stated he believed Mr. LaBorde was going to notify law enforcement about the incident, but Mr. LaBorde failed to do so.

Mr. Magee also acknowledged that it was found the resident had consensually given his money to the employee. However, the joint report states that the employee's taking of the resident's funds was a theft and that Mr. LaCerte failed to report the theft to law enforcement or the resident's family. Despite this, Mr. Magee admitted he was not aware of any legal obligation on the part of Mr. Lacerte to notify the resident's family of the incident.

As to the incident of an LDVA nurse falsifying records of another resident after that resident's death at the Reserve Home, Mr. Magee stated that his office did not think Mr. LaCerte violated any law or policy in that instance, because he went to the Reserve Home to investigate the incident after the home's administrator called the coroner to report the death. Despite this, the joint report states that Mr. LaCerte and his office failed to notify the resident's family about the death. Again, Mr. Magee admitted that Mr. LaCerte did not have a legal obligation to notify the family.

With respect to his military record, Mr. LaCerte attached Mr. Perry's deposition, in which he stated that he verified that it was true that Mr. LaCerte served in Afghanistan and Pakistan as a Marine shortly after September 11, 2001. He was also aware from his investigations and his own prior military service that interrogations were top-secret operations that would not be divulged in public military records. Mr. Perry further stated that he had received a draft of the investigative report and saw that it stated that if Mr. LaCerte had served in that theater of deployment at that time, he would have received the Global War on Terrorism Expeditionary Medal for his service; however, the report indicated that Mr. LaCerte's military record did not reflect that he ever received that award.¹¹

Mr. Perry admitted that he should have pointed out to OIG that he knew Mr. LaCerte did indeed serve in Afghanistan and Pakistan and that the information contained in the report was inaccurate, but that he failed to do so. The reason Mr. Perry knew the information was inaccurate was because he had learned that the Global War on Terrorism Expeditionary Medal did not yet exist during the time when Mr. LaCerte served in Afghanistan and Pakistan, or even when he was discharged from service.

In addition, Mr. LaCerte attached several affidavits of individuals who served with him in Afghanistan and Pakistan while he was active duty in the U.S. Marine Corps. These individuals participated in combat patrols with Mr. LaCerte and missions with security clearances of “Secret or higher.” The nature of these classified missions was interrogation of “high value detainees from the area of operations.” These individuals certified that Mr. LaCerte's biography was accurate, with some stating they were never contacted by the defendants to confirm Mr. LaCerte's military biography.¹² They also stated that parts of his military service record would not have been included on his DD214.

The identity of one of the aforementioned individuals, Jonathan Marko, was made known to Mr. Magee during the course of his investigation, but his office never attempted to contact him. Mr. Magee admitted that Mr. Marko could have verified parts of Mr. LaCerte's military biography. Mr. LaCerte also attached an expert report of Comdr. John B. Wells, USN (retired), also an attorney, who reviewed the defendants’ investigative report, the aforementioned affidavits, and Mr. LaCerte's petition, and found “no substantial evidence to indicate that Mr. LaCerte falsified his military service,” and that his “biography appears to be accurate in all respects.”

Furthermore, Mr. Perry stated in his deposition that he spoke to a Major George Navarro, who told him he served alongside Mr. LaCerte in his interrogation team. Although Mr. Perry spoke to Maj. Navarro in an informal telephone conversation and did not meet him in person, Maj. Navarro nevertheless had informed Mr. Perry about Mr. LaCerte's role as an interrogator. Mr. Perry stated that although he was aware of information that would indicate Mr. LaCerte had indeed been an interrogator, Mr. Street and Mr. Purpera nevertheless decided to add in the report that Mr. LaCerte potentially violated La. R.S. 14:133 for filing false public records.¹³ Mr. Perry also knew he had not reviewed Mr. LaCerte's entire military record, because when he made a request for records from a JAG officer, the only document the officer allowed Mr. Perry to view was Mr. LaCerte's DD214. Mr. Perry further stated that he could not prove that Mr. LaCerte filed false documents on the LDVA website.

In Mr. Magee's deposition, he stated that his office questioned how Mr. LaCerte could have led over 100 combat missions in a tour of duty that would have lasted about 99 days. Mr. LaCerte attached the deposition of Joanna Westbrook, an investigator for the LLA, who stated that it was possible that Mr. LaCerte had led over 100 combat missions and conducted interrogations after he was promoted from the rank of corporal in 2002, and that she was aware of this possibility at the time the joint report was published. She also stated she knew that Mr. LaCerte's DD214 was not a complete record of Mr. LaCerte's military career. However, the report indicates that the claims in his military biography appeared to be false.

The defendants’ publications state that LDVA employees under Mr. LaCerte's supervision deleted 116 incident reports at veterans homes across Louisiana, most of which were reports of residents falling. However, Mr. Perry stated that he was aware that his office could only prove who deleted about twenty of those files. Mr. Perry also stated that the person who deleted the files kept his actions hidden from Mr. LaCerte.

With respect to the allegation that Mr. LaCerte used questionable organizational, hiring, and pay practices, Mr. LaCerte attached the depositions of Karen LeBlanc and Nicole Edmonson, investigators for the LLA. Ms. LeBlanc stated that he did not actually violate any law, policy, or ethics rule with his actions, but that their office still deemed the practice “questionable.” Furthermore, Ms. Edmonson stated that Mr. LaCerte could not unilaterally set his salary, as it was based on “someone else's decision.” When questioned about the business deal with Arrow Energy, Ms. Edmonson stated that at the time the report was published, she knew that Mr. LaCerte's payment to Arrow would have to have been approved by other people or offices in charge of procurement.¹⁴

A genuine issue of material fact is a triable issue. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Put another way, an issue is genuine if reasonable persons could disagree upon it. Smith, 639 So.2d at 751. In the instant case, there are many factual issues upon which Mr. LaCerte and the defendants disagree. Still looming over this case are questions regarding Mr. LaCerte's military service record and his practices as Deputy Secretary and Secretary of the LDVA.

A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action. Smith, 639 So.2d at 751. A material fact is one that would matter at the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion for summary judgment. Smith, 639 So.2d at 751. In the instant case, all facts regarding whether Mr. LaCerte committed the actions that the defendants claim in the investigation and press release, which are by definition defamatory, are material facts that are in dispute.

We therefore conclude that the trial court erred in granting summary judgment in favor of Mr. Street. Mr. LaCerte met his burden to present competent evidence of genuine issues of material fact, which raise a question of whether the defendants published the defamatory language in the joint investigation and press release with malice. Additionally, we find that paragraph nineteen of Mr. Perry's affidavit is not competent evidence, as it contains hearsay testimony. Accordingly, we reverse the trial court's ruling on the motion for summary judgment and remand the matter in conformity with the instructions contained in this opinion.

DECREE

The judgment of the Nineteenth Judicial District Court, which granted summary judgment in favor of the defendant/appellee, Stephen Street, Jr., individually and in his official capacity as Inspector General for the State of Louisiana, is reversed and remanded for further proceedings in conformity with the instructions contained herein. Costs of $12,931.00 are assessed to Mr. Street, in his official capacity as Inspector General for the State of Louisiana.

REVERSED AND REMANDED.

In order for a public official to recover damages for defamation, the public official must establish by clear and convincing evidence that the defamatory statement was made with actual malice, that is, with knowledge it was false or with reckless disregard of whether it was false or not. Hughes v. Capital City Press, L.L.C., 2021-0201 (La.App. 1 Cir. 12/7/21), 332 So.3d 1198, 1210, writ denied, 2022-00023 (La. 2/22/22), 333 So.3d 444. To establish a reckless disregard for the truth, the plaintiff must show that the false publication was made with a high degree of awareness of probable falsity, or that the defendant entertained serious doubt as to the truth of his publication. Further, conduct which would constitute reckless disregard is typically found where a story is fabricated by the defendant, is the product of his imagination, or is so inherently improbable that only a reckless man would have put it in circulation. Id. In this matter, I do not find the plaintiff offered sufficient evidence to create a genuine issue of material fact as to the element of actual malice. Accordingly, I would affirm the trial court's ruling granting summary judgment in favor of the defendants.

FOOTNOTES

3.   Mr. Purpera's writ application to this court was denied on May 14, 2018. See LaCerte v. State, 2017-1727 (La. App. 1 Cir. 5/14/18), 2018 WL 2202302 (unpublished writ action). The Louisiana Supreme Court likewise denied Mr. Purpera's writ application on October 8, 2018. See LaCerte v. State, 2018-0966 (La. 10/8/18), 253 So.3d 792.

4.   Considering this court's reversal of the trial court's judgment granting the Article 971 special motion to strike, and the Louisiana Supreme Court's denial of the supervisory writ application, we also reversed the trial court's judgment awarding the defendants attorney fees pursuant to La. C.C.P. art. 971(B). See LaCerte v. State, 2020-1000 (La. App. 1 Cir. 4/16/21), 323 So.3d 414; LaCerte v. State, 2020-1001 (La. App. 1 Cir. 9/27/21), 330 So.3d 656.

5.   Mr. Purpera was no longer the Legislative Auditor at that time, and filed the motion for summary judgment in his personal capacity. The Legislative Auditor at that time, Michael J. Waguespack, filed the motion for summary judgment in his official capacity as the Legislative Auditor.

6.   The trial court similarly granted summary judgment to the LLA on June 12, 2023.

7.   Mr. LaCerte has also appealed the summary judgment granted to the LLA, which is not at issue in this opinion.

8.   The Commissioner of Administration, through the Office of Risk Management, manages all tort claims made against the State or any State agency. La. R.S. 39:1535.

9.   In the briefs of both parties, they erroneously state Mr. Perry's first name as James.

10.   The exhibit Mr. Perry refers to is a letter from the Division of Administration, dated April 25, 2014, addressed to Mr. LaCerte as Deputy Secretary of the LDVA, which approved the purchase of the above-mentioned vehicle for the above-mentioned purpose.

11.   Specifically, the report states:According to the information received from Headquarters Marine Corps, Mr. LaCerte would have, at minimum, received a Global War on Terrorism Expeditionary Medal if he indeed conducted the activities in his biography. However, this service medal is not listed in his service record. (Footnote omitted)

12.   The statement in question from Mr. LaCerte's military biography is the following:Prior to joining LDVA, LaCerte served in the Marine Corps Infantry in the First Marine Division. Under the command of General James Mattis, he led the first Marines into Afghanistan and Pakistan only weeks after 9/11, helping to drive the Taliban from Khandahar and establish several forward operating bases in hostile territory. He has led over 100 combat patrols and missions in Afghanistan and Pakistan, and also served as a member of interrogations teams for high value Al Qaeda targets.

13.   Louisiana Revised Statutes 14:133 states, in pertinent part:Filing false public records is the filing or depositing for record in any public office or with any public official, or the maintaining as required by law, regulation, or rule, with knowledge of its falsity, of any of the following:(1) Any forged document.(2) Any wrongfully altered document.(3) Any document containing a false statement or false representation of a material fact.

14.   Specifically the report states:LDVA paid $44,128 to [Arrow Energy] for improperly documented work without having a contract, as required by state law.

LANIER, J.

Edwards, J. concurring without reasons. McClendon, C.J. dissents in part and assigns reasons. Theriot, J. dissents in part in reasons assigned by McClendon.