Poulard v. Lauth, et al. (IndCtApp 8/20/03)
May, Judge
In this interesting case Poulard, president of the Michiana Shores Town Council, acting pro se, brought an action against the News-Dispatch, a newspaper, and Lauth, who made statements to the newspaper.
All defendants moved for summary judgment pursuant to Ind. Code § 34-7-7-5 (the “anti-SLAPP” statute) and their motions were granted on May 22, 2001. In its judgment, the trial court noted that defendants who prevail on an anti-SLAPP motion to dismiss are entitled to attorney’s fees and costs, and it stated that “All issues pertaining to the recovery of attorney fees by the respective defendants is [sic] hereby reserved for ruling” subject to the defendants’ request for a hearing on the fees, their filing of affidavits in support, and notice to Poulard.In a footnote, the Court of Appeals states:
SLAPP is an acronym for “strategic lawsuit against public participation.” Ketchum v. Moses, 17 P.3d 735, 737 (Cal. 2001), reh’g denied. The “anti-SLAPP” statutes, of which Indiana’s is typical, are intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The statute protects, inter alia, direct petitioning of the government and petition-related statements and writings, whether or not the statement is made in connection with a public issue. Id. The special motion to strike provided for by the Indiana statute -- the so-called “anti-SLAPP” motion -- is subject to statutory fee shifting as follows: “A prevailing defendant on a motion to dismiss made under this chapter is entitled to recover reasonable attorney’s fees and costs.” Ind. Code § 34-7-7-7. The statute provides that such a motion to dismiss is to be handled by the trial court as a summary judgment motion. Id. § 34-7-7-9.The newspaper did file for attorney's fees and Poulard, still pro se, filed a notice of appeal. A few days before the hearing, as the opinion relates:
counsel for Poulard appeared for the first time and filed Poulard’s objection and response to the newspaper’s motion. Poulard argued for the first time in that response that the anti-SLAPP statute “was not intended to immunize the media from suits for defamation,” and that if it does apply to Poulard, it is unconstitutional.The trial court ultimately awarded attorney's fees to the newspaper, but not to Lauth. Poulard and Lauth appealed. The Court of Appeals concluded:
Poulard’s arguments that the anti-SLAPP statute does not apply to his lawsuit were waived on appeal because he failed to raise them prior to grant of summary judgment on the merits for the newspaper and Lauth. We accordingly affirm the award of attorney’s fees to the newspaper. The trial court abused its discretion in declining to award attorney’s fees to Lauth, and we accordingly remand for a determination of the amount of attorney’s fees to which Lauth is entitled. The trial court properly sanctioned Lauth for failure to comply with discovery, and we affirm that order. Affirmed in part, reversed in part, and remanded.Posted by Marcia Oddi at August 20, 2003 08:26 PM