Opinion
2018 CA 1285
04-12-2019
DWAYNE ALEXANDER v. JAMES P. ENGLADE, EXECUTIVE DIRECTOR AND CUSTODIAN OF RECORDS FOR/AND THE LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS
Robert G. Harvey, Sr. Hannon Vey Laplace Tamara Kluger Jacobson New Orleans, Louisiana Attorneys for Plaintiff/Appellant Dwayne Alexander Jeff Landry Attorney General James M. Garner Special Assistant Attorney General Ryan O. Luminais Brandon W. Keay Debra J. Fischman New Orleans, Louisiana Attorneys for Defendants/Appellees State Board of Private Investigator Examiners
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C659100, Sec. 24 The Honorable R. Michael Caldwell, Judge Presiding Robert G. Harvey, Sr.
Hannon Vey Laplace
Tamara Kluger Jacobson
New Orleans, Louisiana Attorneys for Plaintiff/Appellant
Dwayne Alexander Jeff Landry
Attorney General
James M. Garner
Special Assistant Attorney General
Ryan O. Luminais
Brandon W. Keay
Debra J. Fischman
New Orleans, Louisiana Attorneys for Defendants/Appellees
State Board of Private Investigator
Examiners BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The plaintiff, Dwayne Alexander, appeals the trial court's judgment sustaining the defendants', Louisiana State Board of Private Investigator Examiners (the Board) and James P. Englade, both in his individual capacity and in his official capacity as the Executive Director of the Board, peremptory exception raising the objection of no cause of action, dilatory exception raising the objection of improper use of summary proceeding, and dismissing his claim with prejudice. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The plaintiff is a former private investigator who held a license from 1997 to 2006. The plaintiff continued to work as a private investigator after his license expired in 2006. In March of 2009, the plaintiff was personally served with a cease and desist order from the Board, which ordered the plaintiff to cease and desist from the practice of private investigation pursuant to La. R.S. 37:3500, et. seq. As a result, the plaintiff filed several lawsuits against the Board, including the instant matter that involved the plaintiff filing a petition for a writ of mandamus on June 27, 2017, against the defendants. In his petition, the plaintiff stated that the cease and desist order was "a fabricated and false document in the public records ... and [he was] entitled to have [it] removed from the official records of the Board."
In response, the defendants filed a dilatory exception raising the objection of improper use of summary proceeding and peremptory exceptions raising the objection of no cause of action and no right of action. The defendants argued that the plaintiff's mandamus claim should be denied and dismissed because there was no ministerial duty imposed by law to compel the Board to cancel or remove public records that are allegedly defective.
On July 13, 2017, the trial court held a hearing on the defendants' exceptions. After hearing arguments from the parties, the trial court signed a judgment on July 31, 2017, granting the defendants' peremptory exception raising the objection of no cause of action and giving the plaintiff fifteen days to amend his petition for a writ of mandamus to state a cause of action. On August 21, 2017, the plaintiff filed his "First Supplemental and Amending Petition for Writ of Mandamus," which substantially mirrored his original petition for a writ of mandamus. Subsequently, the defendants filed a dilatory exception raising the objection of improper use of summary proceeding and peremptory exceptions raising the objections of no cause of action and no right of action. In their exceptions, the defendants argued that a writ of mandamus was not warranted because it was an extraordinary remedy that may only be used sparingly to compel an action that is clearly provided by law. The defendants further argued that the type of relief the plaintiff was seeking could be sought through ordinary process. Therefore, the defendants requested that the trial court grant their exceptions and dismiss the plaintiffs' claim with prejudice.
On March 12, 2018, the trial court set a hearing on the defendants' exceptions for April 16, 2018. On March 22, 2018, the plaintiff fax-filed a motion to continue the April 16, 2018 hearing due to a scheduling conflict. The plaintiff did not file the original signed motion to continue with the clerk of court until April 5, 2018. On March 27, 2018, the defendants filed an opposition to the plaintiffs' motion to continue. On April 12, 2018, the plaintiff fax-filed a motion to dismiss the case without prejudice. The trial court denied the plaintiffs' motion to dismiss on April 23, 2018. On April 16, 2018, the trial court held a hearing on the defendants' exceptions. The plaintiff did not attend the hearing. After hearing argument from the defendants' counsel, the trial court ruled in favor of the defendants. Thereafter, the judgment was signed on May 23, 2018, granting the defendants' peremptory exception raising the objection of no cause of action and dilatory exception raising the objection of improper use of summary proceeding, and dismissing the case with prejudice. The plaintiff devolutively appealed the May 23, 2018 judgment.
In accordance with La. C.C.P. art. 1671, the trial court could have properly granted the plaintiff's motion to dismiss his mandamus claim with prejudice since the defendant had made an appearance of record prior to the plaintiff filing the motion to dismiss.
We note that the record contains an order signed on May 10, 2018, stating that the trial court reset the hearing on the defendants' exceptions for July 2, 2018. However, the hearing on the exceptions was held on April 16, 2018 and the case was dismissed with prejudice on May 23, 2018.
We pretermit discussion of the plaintiff's argument on appeal regarding his motion to continue because the plaintiffs' original motion to continue was not filed with the clerk of court within seven days after receiving the fax-filed transmission. Therefore, as mandated by La. R.S. 13:850, the plaintiffs' motion does not have force and effect, and will not be considered on appeal. See La. R.S. 13:850(A), B), and (C); see also Dunn v. City of Baton Rouge, 2007-1169 (La. App. 1 Cir. 2/8/08), 984 So.2d 129, 131. Furthermore, a motion for a continuance is a contradictory motion that the court cannot grant without a hearing unless all parties consent. See La. C.C.P. art. 1605.
DISCUSSION
The plaintiff argues that the trial court erred by not granting his writ of mandamus. Mandamus is an extraordinary remedy which should be applied only where ordinary means fail to afford adequate relief. Parish Council of Parish of Livingston v. Ricks, 2015-0271 (La. App. 1 Cir. 2/25/16) 2016 WL 759195 *2 (unpublished). A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. La. C.C.P. art. 3863. Ministerial duties are duties in which no element of discretion is left to the public officer. Hoag v. State, 2004-0857 (La. 12/1/04), 889 So.2d 1019, 1024. A ministerial duty is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. Id. If a public officer is vested with any element of discretion, mandamus will not lie. Id. A mandamus action for production of a public record requires a contradictory hearing. Lewis v. Morrell, 2016-1055 (La. App. 4 Cir. 4/5/17), 215 So.3d 737, 742. The Louisiana Supreme Court described a contradictory hearing as one that provides "an opportunity for cross-examination and presentation of evidence." In re Matter Under Investigation, 2007-1853 (La. 7/1/09), 15 So.3d 972, 991-92. However, when the requirements for invoking the mandamus remedy under La. R.S. 44:35 are not met, such a hearing has not been required. Lewis v. Morrell, 2016-1055 (La. App. 4 Cir. 4/5/17), 215 So.3d 737, 741; see also Frank L. Maraist, 1A LA. CIV. L. TREATISE, CIV. PROC.—SPECIAL PROCEED., § 1.5 (2018) (stating that "a judge may notice on his own motion that a petition fails to state a cause of action, and in such a case, requiring the issuance of the writ seems useless").
Louisiana Revised Statute 44:35(A) provides for the use of a writ of mandamus to compel compliance with the Public Records Law, stating the following:
Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located.
To prevail in his mandamus action against the defendants, a public office and officer, the plaintiff must show that: (1) the law clearly requires the defendants to perform a nondiscretionary, ministerial duty in this matter; and (2) mandamus is the plaintiffs' only available remedy or that the delay occasioned by the use of any other remedy would cause injustice. See La. C.C.P. arts 3862 and 3863; Aberta, Inc. v. Atkins, 2012-0061 (La. 5/25/12), 89 So.3d 1161, 1162-63; Central Community School Bd. v. East Baton Rouge Parish School Bd., 2008-0036 (La. App. 1 Cir. 6/6/08), 991 So.2d 1102, 1110, writs denied, 2008-1480, 2008-1538 (La. 12/12/08), 997 So.2d 561. Based on our review of the record, it is readily apparent that the plaintiff has failed to satisfy his burden of showing that the extraordinary remedy of mandamus is warranted in this case.
The plaintiff's mandamus claim was filed in June of 2017, and the plaintiff was seeking to either dismiss without prejudice or continue the hearing on his claim. In this case, the law affords the plaintiff the ability to seek relief by ordinary means, such as declaratory judgment or a mandatory injunction. The plaintiff has failed to demonstrate or argue that any delay in obtaining ordinary relief would cause injustice sufficient to support the issuance of a writ of mandamus. See La. C.C.P. art. 3862; Louisiana Assessors' Retirement Fund v. City of New Orleans, 2001-0735 (La. 2/26/02), 809 So.2d 955, 956. Because the plaintiff failed to meet his burden of showing that he was unable to pursue relief by ordinary means or that a delay in obtaining such relief would cause injustice, he is not entitled to mandamus relief. Id.
Accordingly, we find that the trial court correctly determined that the plaintiffs' petition for a writ of mandamus failed to state a cause of action. Furthermore, we agree with the trial court's determination that the use of summary procedure in this case is improper and inappropriate since a mandamus action was not proper and the plaintiff had relief available by ordinary means, such as filing a petition for a mandatory injunction or a petition for a declaratory judgment. Therefore, we affirm the trial court's judgment.
CONCLUSION
For the foregoing, we affirm the May 23, 2018 judgment, granting the defendants' peremptory exception raising the objection of no cause of action and dilatory exception raising the objection of improper use of summary proceeding, and dismissing the case with prejudice. Costs of this appeal are assessed to the plaintiff, Dwayne Alexander.
AFFIRMED.