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FRANK v. LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS, 2013 CA 2242. (2015)

Court: Court of Appeals of Louisiana Number: inlaco20150303204 Visitors: 12
Filed: Mar. 02, 2015
Latest Update: Mar. 02, 2015
Summary: NOT DESIGNATED FOR PUBLICATION HIGGINBOTHAM , J. The plaintiff, Scott Frank, appeals a partial judgment dismissing his petition, with prejudice, as to two defendants 1 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
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NOT DESIGNATED FOR PUBLICATION

The plaintiff, Scott Frank, appeals a partial judgment dismissing his petition, with prejudice, as to two defendants1 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.

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 See Frank v. Louisiana State Board of Private Investigator Examiners, 2012-2040 (La.App. 1st Cir. 10/9/13)(unpublished), writ denied, 2013-2617 (La. 2/7/14), 131 So.3d 864.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.2

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 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.

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

FootNotes


1. 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.
2. 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.
Source:  Leagle

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