NOT DESIGNATED FOR PUBLICATION
McDONALD, J.
This is one of two related cases handed down on this day. The other case is Magri v. WAFB, L.L.C., 2011-1990 (La. App. 1 Cir. 10/25/12) (unpublished).
On December 30, 2004, the plaintiff, Irvin L. Magri, Jr., filed suit for damages against WAFB, L.L.C. (WAFB), operating as Channel 9 in Baton Rouge, Paul Gates, a reporter for WAFB, Gary A. Hyatt, the former chairman of the Louisiana Board of Private Investigators (the Board), and XYZ Insurance Company, the alleged insurer for WAFB. Mr. Magri asserted that on December 31, 2003, he was the chairman of the Louisiana Board of Pardons and that on said date, Mr. Gates' broadcasts on WAFB at 6:00 p.m. and 10:00 p.m. stated that Mr. Magri had hired unlicensed private investigators in 1993. Mr. Magri alleged that the broadcasts caused him expenses, lost wages, and emotional distress. Mr. Magri asserted that he was intentionally defamed, dishonored, discredited, and held up to undeserved public ridicule based upon the broadcasts by Mr. Gates on WAFB.
Mr. Magri asserted that WAFB and Mr. Gates failed to properly investigate the facts and take reasonable care; that Mr. Gates caused intentional and deliberate harm; and that WAFB failed to appropriately screen, supervise, and train its employees. He asserted that the incident was also caused by the negligence of Mr. Hyatt, who "falsely denied the facts" of the matter during the broadcast.
On January 6, 2009, Mr. Magri filed a First Supplemental and Amending Petition for Damages (hereafter the first First Supplemental and Amending Petition for Damages),1 adding as defendant the Board and asserting that the Board, through its members, its former Executive Director, Mr. Hyatt, and through its other employees, conspired to cause damage to Mr. Magri by losing his application to add the names of additional investigators to his private investigative agency. Mr. Magri asserted that through the actions or inactions of Mr. Hyatt or other employees, the Board intentionally caused Mr. Magri to face disciplinary charges and prosecution, resulting in his payment of a fine, among other assertions. The district court judge signed the order to allow the first First Supplemental and Amending Petition be filed, however, no service was requested.
WAFB and Mr. Gates filed a motion to strike the Petition and the first First Supplemental and Amending Petition and a peremptory exception raising the objection of no cause of action.2 Mr. Magri filed a motion to strike the motion to strike the Petition and the first First Supplemental and Amending Petition.3
After a hearing, the district court denied Mr. Magri's motion to strike the motion to strike filed by WAFB and Mr. Gates, granted the motion to strike filed by WAFB and Mr. Gates, dismissed with prejudice Mr. Magri's Petition and first First Supplemental and Amending Petition without leave to amend as to WAFB and Mr. Gates, and cast Mr. Magri with all costs incurred by WAFB and Mr. Gates. Further, the district court ordered that WAFB and Mr. Gates were entitled to attorney fees, and if no agreement was reached by the parties as to the amount, WAFB and Mr. Gates could submit a motion to set reasonable attorney fees; and ruled that the granting of the motion to strike precluded the need to rule on the peremptory exception of no cause of action filed by WAFB and Mr. Gates. By consent judgment signed December 2, 2009, Mr. Magri paid WAFB and Mr. Gates $25,000.00 in attorney fees and costs.
On January 24, 2011, Mr. Magri filed a First Supplemental and Amending Petition (hereafter the second First Supplemental and Amending Petition), seeking to amend the petition to remove WAFB and Mr. Gates as defendants and asserting that Mr. Hyatt was now deceased and his succession representative was unknown, and adding as defendants Joseph A. Oster, individually and as an officer of the Board, and the Board. This petition was served upon the parties but was not filed with leave of court.
On March 21, 2011, the Board filed a declinatory exception raising the objection of insufficiency of service of process and peremptory exceptions raising the objections of prescription and res judicata. The Board asserted that Mr. Magri filed his first First Supplemental and Amending Petition on January 6, 2009; however, the Board was never served with Mr. Magri's first First Supplemental and Amending Petition for Damages, and the Board requested that the first First Supplemental and Amending Petition be dismissed for insufficiency of service of process for failure to timely request service of citation. The Board asserted that the allegations in both the first and second First Supplemental and Amending Petitions named new defendants and new causes of action that did not relate back to the original petition; thus, Mr. Magri's claims in both the first and second First Supplemental and Amending Petitions were prescribed and should be dismissed pursuant to La. C.C.P. art. 927(A)(1).
Further, the Board asserted that the claims were res judicata, pursuant to a consent agreement signed on March 17, 1995, in which Mr. Magri agreed to plead nolo contendre to the charge of employing unlicensed investigators and pay a $3,000.00 fine to the Board, releasing the Board and its employees from any further claims he might have against them. In exchange, the Board agreed to take no further disciplinary action against Mr. Magri in the matter. Thus, the Board asserted res judicata applied as there was a settlement of the matter in accordance with La. C.C. art. 3071.
On March 30, 2011, Mr. Oster filed: a dilatory exception raising the objection of vagueness to the second First Supplemental and Amended Petition; a peremptory exception raising the objection of prescription, asserting that the claims against him arose from an occurrence different from the news broadcast and did not relate back to the filing date of the Petition and were prescribed; a peremptory exception raising the objection of res judicata, asserting the claims asserted against him in the second First Supplemental and Amending Petition arose from the same disciplinary action dealt with in the settlement agreement; and a peremptory exception raising the objection of no cause of action as to the individual claims against him.
On April 20, 2011, Mr. Magri filed a Second Supplemental and Amending Petition with leave of court from a judge in a different division (Judge Janice Clark in Division "D") which alleged additional facts regarding the actions of Mr. Oster, Mr. Hyatt, and the Board.
After a hearing on May 23, 2011, the district court ruled, sustaining the Board's insufficiency of service of process exception and dismissing Mr. Magri's claims against the Board without prejudice. The Board's prescription and res judicata exceptions were pretermitted. This judgment was signed on June 13, 2011.
Also at the May 23, 2011 hearing, the district court heard the vagueness exception and prescription, res judicata and no cause of action exceptions filed by Mr. Oster and ruled in favor of Mr. Oster, sustaining his no cause of action exception and dismissing all claims against Mr. Oster in his personal capacity with prejudice; sustaining Mr. Oster's vagueness exception, and granting Mr. Magri 15 days to amend the petition's allegations against Mr. Oster under penalty of dismissal of all claims against Mr. Oster for failure to do so; and ordering that the prescription and res judicata exceptions were pretermitted pending amendment of the petitions by Mr. Magri. This judgment was also signed on June 13, 2011.4
On June 2, 2011 (notably after the May 23 hearing wherein judgments were rendered but before the judgments were signed on June 13, 2011), Mr. Magri filed a rule to show cause why his second First Supplemental and Amending Petition should not be filed. At a hearing on August 1, 2011, the district court heard Mr. Magri's motion for his second First Supplemental and Amending Petition to be filed. The district court denied the motion.
Mr. Magri filed an appeal on August 11, 2011, stating that he was appealing the judgment signed on June 13, 2011 (which sustained the exception raising the objection of insufficiency of service of process and dismissed his claims against the Board), and also appealing the judgment, which had not yet been signed, arising out of the hearing held on August 1, 2011 (wherein the trial court denied Mr. Magri's request that an order be signed allowing the filing of the second First Supplemental and Amending Petition that was filed on January 24, 2011). On August 17, 2011, the district court signed the judgment denying Mr. Magri's request for leave of court to file the second First Supplemental and Amending Petition, which was filed on January 24, 2011.
In his assignment of error Mr. Magri asserts that the district court erred in not allowing him to file his second First Supplemental and Amending Petition.
APPEAL DISMISSED IN PART
On January 31, 2012, this court issued a show cause order, finding that the June 13, 2011 judgment as to the claims against Joseph A. Oster was conditional and not a final judgment subject to appeal. The parties were ordered to brief the matter of what rulings were properly before the court on appeal, and on April 12, 2012, this court dismissed the appeal in part, stating "The instant appeal is dismissed as to the district court's June 13, 2011, judgment regarding claims against Joseph A. Oster."
ANALYSIS
A plaintiff may amend a petition after defendant has answered only by leave of court or written consent of the adverse party. La. C.C.P. art. 1151. A trial judge has much discretion in this regard and its decision granting or denying a party's request to amend or supplement a petition will not be disturbed absent an abuse of discretion. Royer v. St. Paul Fire & Marine Ins. Co., 502 So.2d 232, 235 (La. App. 3 Cir.), writ denied, 503 So.2d 496 (La. 1987).
At the hearing on August 1, 2011, in its oral reasons for judgment, the district court found:
Well, this matter came before me back in May, and I think I addressed this issue, but I want to make sure the record is clear, I'm going to address it again. January 24, plaintiff filed what's entitled a First Supplemental and Amending Petition, but it was actually a second supplemental and amending petition. Plaintiff had filed the first one back on January 6 of '09. [He] did not file a motion for leave of court to file, [he] just simply filed and served, which violates Code of Procedure art. 1151 which requires leave of court. It also violates rule 9.8(A) which requires that an order be attached, which explains why no order was signed because it wouldn't come up to me without an attached order. Subsequently, plaintiff filed a third supplemental and amending petition on April 20 of '11 which was served. The defendants responded with the exceptions which formed the basis of the May 23 hearing, at which time the Court granted the exceptions, dismissed the state without prejudice based upon the failure to timely request service, and I [sustained] Mr. Oster's exceptions] of vagueness and no cause, giving plaintiff 15 days to amend. I see no merit in the motion, and so based on that, the Court is going to deny the motion now to sign the second supplemental and amending petition based on the procedural posture of the case.
When Mr. Magri filed his motion with the court to allow him leave to file his second First Supplemental and Amending Petition (on June 2, 2011) the district court had already rendered judgment at the hearing on May 23, 2011, sustaining the Board's declinatory exception raising the objection of insufficiency of service of process and dismissing Mr. Magri's claims against the Board without prejudice and dismissing Mr. Magri's claims against Mr. Oster individually.5
Thus, Mr. Magri's motion to allow him to file his second First Supplemental and Amending Petition was moot. Therefore, we find no abuse of discretion by the district court in denying Mr. Magri's motion to file his second First Supplemental and Amending Petition.6
Therefore, for the foregoing reasons, the district court judgment denying Mr. Magri leave to file his second First Supplemental and Amending Petition is affirmed. Mr. Magri is cast with costs.
AFFIRMED; JOINT MOTION DENIED AS MOOT.
