157 So. 3d 779
La. Ct. App.2014Background
- Between Sept. 2010 and May 2011 three anonymous letters alleging malpractice and misconduct about Dr. Mace Scott were sent to Touro Infirmary; a fourth similar anonymous letter (re-publishing the prior three) was sent to St. Bernard Parish Hospital in Oct. 2012.
- Touro’s internal investigation cleared Scott; he resigned in Jan. 2012 and later obtained the St. Bernard emergency-room contract through Southern Emergency Medicine, LLC.
- Scott sued Kamran Zaherí on Feb. 14, 2013 for defamation and related torts, alleging Zaherí authored the anonymous letters.
- Zaherí filed exceptions of prescription (arguing the 2010–2011 letters were time-barred), no cause of action, and no right of action.
- The trial court sustained prescription for claims arising from the three 2010–2011 letters, sustained parts of the no-cause exception (dismissing several nondefamation tort claims), and overruled defamation and intentional infliction of emotional distress claims.
- On appeal the court affirmed prescription as to the three early letters but remanded to allow Scott to amend to plead contra non valentem; it reversed the partial no-cause ruling as an improper partial exception and remanded with instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether publications constitute a continuing tort (tolling prescription until last publication in Oct. 2012) | Scott: successive publications are continuous harassment producing ongoing damages; continuing-tort doctrine applies | Zaherí: each publication is a discrete tort with separate damages and a one-year prescriptive period | Court: Not a continuing tort; each publication is a separate delict and earlier claims prescribed |
| Whether contra non valentem tolls prescription until Scott discovered author identity | Scott: identity was effectively concealed by anonymous mailings; doctrine should suspend/toll prescription | Zaherí: prescription runs; Scott did not plead contra non valentem in district court | Court: Scott did not plead it below, so exception sustained on the face of the petition, but remand required to allow amendment to plead facts supporting contra non valentem |
| Whether the petition states causes of action for fraud, tortious interference, negligent infliction of emotional distress | Scott: petition adequately pleads these torts arising from defamatory letters and their consequences | Zaherí: petition fails to state these causes of action as pleaded | Court: Trial court improperly granted a partial no-cause dismissal; exception should have been overruled because petition states at least one cause (defamation) |
| Procedural question: May trial court grant partial exception of no cause of action | Scott: partial dismissal is improper; entire exception should be overruled | Zaherí: limited dismissal proper as to certain claims | Court: Louisiana disfavors partial no-cause rulings; reversed that part of trial court judgment |
Key Cases Cited
- South Central Bell v. Texaco, 418 So.2d 531 (La. 1982) (continuing-tort principle: prescription runs from cessation of continuous wrongful conduct)
- Bustamento v. Tucker, 607 So.2d 532 (La. 1992) (workplace harassment may, in some cases, present continuing tort analysis)
- Crump v. Sabine River Authority, 737 So.2d 720 (La. 1999) (continuing tort requires a continuing duty and continuing breach; rooted in property-damage contexts)
- Hogg v. Chevron USA Inc., 45 So.3d 991 (La. 2010) (focus on whether tortfeasor perpetuates injury through overt, persistent, ongoing acts)
- Whitnell v. Menville, 540 So.2d 304 (La. 1989) (where plaintiff raises allegations that might overcome prescription, courts should allow amendment under La. C.C.P. art. 934)
- Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234 (La. 1993) (partial exceptions of no cause of action generally should be overruled to avoid piecemeal appeals)