Opinion
NO. 2013 CA 2242
03-02-2015
SCOTT FRANK v. LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS
George J. Tate Abbeville, LA Attorneys for Plaintiff-Appellant, Scott Frank Joseph N. Lotwick Baton Rouge, LA James D. "Buddy" Caldwell Attorney General David G. Sanders Lee J. Ledet Assistant Attorneys General Baton Rouge, LA Attorneys for Defendants-Appellees, Louisiana State Board of Private Investigator Examiners, et al
NOT DESIGNATED FOR PUBLICATION On Appeal from the 19th Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana
Trial Court No. C606869
Honorable William A. Morvant, Judge Presiding George J. Tate
Abbeville, LA
Attorneys for Plaintiff-Appellant,
Scott Frank
Joseph N. Lotwick
Baton Rouge, LA
James D. "Buddy" Caldwell
Attorney General
David G. Sanders
Lee J. Ledet
Assistant Attorneys General
Baton Rouge, LA
Attorneys for Defendants-Appellees,
Louisiana State Board of Private
Investigator Examiners, et al
BEFORE: WHIPPLE, C.J., McDONALD, McCLENDON, WELCH AND HIGGINBOTHAM, JJ. HIGGINBOTHAM, J.
The plaintiff, Scott Frank, appeals a partial judgment dismissing his petition, with prejudice, as to two defendants after sustaining those defendants' peremptory exception raising the objection of no cause of action. We find the trial court erred in dismissing the petition since the defendants' exception only challenged two of the three claims alleged in plaintiff's supplemental and amending petition. Thus, we reverse and set aside the trial court judgment, and remand the case for further proceedings.
Plaintiff's petition named the Louisiana State Board of Private Investigator Examiners as a defendant herein, as well as individual board members Bruce Childers, Maria Dugas, John Mowell, Kenneth Landry, Calvin C. Fayard, III, Annette Kovac, and James P. Englade, and by amended petition, Robert Weltz and George Day.
FACTS AND PROCEDURAL HISTORY
Due to the procedural posture of this case, all facts are gathered from the pleadings and referenced attachments. Scott Frank is a private investigator licensed in the state of Louisiana. In December 2010, Mr. Frank was advised by Pat Englade, the executive director of the Louisiana State Board of Private Investigator Examiners (the Board), that a complaint had been filed against him and that the Board was investigating a possible violation of state rules and regulations pertaining to private investigators. The Board convened in November 2011 for an administrative hearing, subsequently concluding that Mr. Frank had not committed perjury, but he had demonstrated professional incompetency. Mr. Frank was ordered to pay a fine and to undergo additional training. Mr. Frank sought judicial review of the Board's decision, which was eventually affirmed by the trial court and this court in a separate appeal. See Frank v. Louisiana State Board of Private Investigator Examiners, 2012-2040 (La. App. 1st Cir. 10/9/13)(unpublished), writ denied, 2013-2617 (La. 2/7/14), 131 So.3d 864.
While the appeal of the Board's decision was pending, Mr. Frank filed a supplemental and amending petition for damages in January 2012. In that petition, Mr. Frank requested service on each of the Board's six members and its executive director (sometimes referred hereafter as "the defendants"), alleging that the defendants had violated his civil rights to procedural due process and equal protection. He also alleged the defendants had committed unfair trade practices and had publicly disseminated defamatory statements about him. Mr. Frank specifically alleged that although the Board had concluded the "privileged and confidential allegations of perjury were proved false, . . . the defendants all perpetuated, authorized and directed this scurrilous and false information throughout the [Louisiana Private Investigator] [A]ssociation, and to the general public[,]" causing him damages due to lost business and reputation directly related to the defendants' defamatory statements.
Mr. Frank's petition was removed to federal court and then remanded back to the Nineteenth Judicial District Court after Mr. Frank filed an amending complaint in federal court, reserving only state law claims pertaining to procedural due process violations, unfair trade practices, and defamation.
On December 17, 2012, the Board and its executive director filed a peremptory exception raising the objection of no cause of action. However, the memorandum filed in support of the exception only addressed two of the three claims alleged in Mr. Frank's supplemental and amending petition. The defendants maintained that Mr. Frank did not have a cause of action for violation of his procedural due process rights since the Board's administrative decision was affirmed on appeal, which was a clear indication that Mr. Frank was afforded the required due process. The defendants also argued that Mr. Frank had not alleged any facts contemplated by Louisiana's laws regarding unfair trade practices pursuant to La. R.S. 51:1401, et seq. The record does not reflect that Mr. Frank opposed the defendants' exception.
Although the defendants' exception of no cause of action did not address Mr. Frank's defamation claim, the trial court sustained the exception on April 4, 2013, and allowed Mr. Frank time to amend his petition. Mr. Frank did not timely amend his petition. Consequently, the trial court signed a judgment on July 25, 2013, dismissing Mr. Frank's petition, with prejudice, as to the Board and its executive director. Mr. Frank appealed the dismissal of his petition as to those two defendants, conceding that he no longer has a claim for unfair trade practices, but arguing that the trial court erred in sustaining the exception of no cause of action as to the defamation claims that were not part of the Board and executive director's exception.
The Board's six members and its executive director, in their individual capacities, filed a peremptory exception of no cause of action on July 19, 2013, asserting that Mr. Frank's petition failed to state a cause of action as to the claims for procedural due process violations, unfair trade practices, and defamation. However, that particular exception and subsequent trial court ruling on October 31, 2013, are not at issue in this appeal. Further, we note that the record reveals a second amended petition was filed by Mr. Frank on November 18, 2013, more specifically alleging his defamation claim, but we will not consider that amended petition since it was filed well after the judgment on appeal was signed.
LAW AND ANALYSIS
The judgment at issue in this case is a partial final judgment, which is immediately appealable since it dismisses, with prejudice, two defendants, the Board and its executive director. See La. Code Civ. P. art. 1915(A)(1); Best Fishing, Inc. v. Rancatore, 96-2254 (La. App. 1st Cir. 12/29/97), 706 So.2d 161, 165. The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 91-2708 (La. 4/12/93), 616 So.2d 1234, 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. Code Civ. P. art. 931. Therefore, the court reviews the petition and accepts well-pleaded allegations of fact as true. Everything on Wheels Subaru, 616 So.2d at 1235. Generally, an exception of no cause of action should not be maintained in part, so as to prevent a multiplicity of appeals thereby forcing an appellate court to consider the merits of the action in a piecemeal fashion. Id., 616 So.2d at 1236. If there are two or more items of damages or theories of recovery that arise out of the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss an item of damages or theory of recovery. Id., 616 So.2d at 1239.
Louisiana Code of Civil Procedure article 1915(A)(1) provides, in pertinent part: "A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court ... [d]ismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors." (Emphasis added.) Further, a dismissal with prejudice has the effect of a final judgment on the merits. Cavalier v. Rivere's Trucking, Inc., 2003-2197 (La. App. 1st Cir. 9/17/04), 897 So.2d 38, 41.
An appellate court conducts a de novo review of a trial court's ruling sustaining an exception of no cause of action, because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Industrial Companies, Inc. v. Durbin, 2002-0665 (La. 1/28/03), 837 So.2d 1207, 1213. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Id. See also Louisiana Public Service Commission v. Louisiana State Legislature, 2012-0353 (La. App. 1st Cir. 4/26/13), 117 So.3d 532, 537. The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief. State, Div. of Admin., Office of Facility Planning and Control v. Infinity Sur. Agency, L.L.C., 2010-2264 (La. 5/10/11), 63 So.3d 940, 946.
In this case, there is only one cause of action for damages alleged in Mr. Frank's petition, with three distinct possible theories of recovery - a procedural due process violation claim, an unfair trade practice claim, and a defamation claim. The exception of no cause of action filed by the Board and its executive director focused on only the first two theories of recovery, essentially ignoring the defamation claim. The trial court's partial judgment dismissing Mr. Frank's petition does not specify the particular claims that were dismissed; likewise, the judgment sustaining the peremptory exception of no cause of action merely states that the exception "is sustained." Because the defendants' exception does not refer to the defamation claim, it does not appear that Mr. Frank's claim for defamation was ever considered by the trial court when it sustained the defendants' exception of no cause of action. Accordingly, we conclude the trial court's judgment erroneously dismissed Mr. Frank's petition, with prejudice, as to the Board and its executive director on less than all of the claims asserted against the excepting defendants.
Silence in a judgment is generally construed as a denial of the relief sought on those issues. Schoolhouse, Inc. v. Fanguy, 2010-2238 (La. App. 1st Cir. 6/10/11), 69 So.3d 658, 664. Thus, even if we were to conclude that the trial court considered and denied (by its silence) the defamation claim, we would nevertheless find an error on the part of the trial court, because an exception of no cause of action must be overruled when a petition states a cause of action as to any portion of the demand. Louisiana Public Service Commission, 117 So.3d at 537.
Moreover, accepting all of the allegations in Mr. Frank's supplemental and amending petition as true and applying the legal principles set forth above, we find that Mr. Frank's petition alleges facts sufficient to state a cause of action for a defamation claim. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Louisiana Public Service Commission, 117 So.3d at 537. Considering all of the allegations in Mr. Frank's supplemental and amending petition, we find that the law provides a remedy against these defendants if the well-pleaded allegations of defamation are borne out at trial.
CONCLUSION
For the outlined reasons, the July 25, 2013 partial judgment is reversed and set aside, and this case is remanded to the trial court for further proceedings. Appellate costs in the amount of $2,021.00 are assessed against the defendants, Louisiana State Board of Private Investigator Examiners, et al.
REVERSED AND REMANDED. McCLENDON, J., concurs.
The record establishes that after the Board and the Director filed their exception of no cause of action, but before the judgment on said exception, a second exception of no cause of action was filed on behalf of the Director and the individual board members.
Louisiana Code of Civil Procedure article 2088A provides, in pertinent part:
The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal.
In this matter, following the signing of the order of appeal regarding the judgment on the first exception, the trial court signed a subsequent judgment on the second exception again dismissing the claims against the Director. I question the jurisdiction of the trial court to act regarding the claims against the Director while this appeal was pending. Nevertheless, based on the facts before us, I concur with the result reached by the majority.
The subsequent judgment also dismissed the individual board members who were not dismissed in the original judgment.
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