Landrum v. Board of Com'rsLandrum v. Board of Com'rs
Joel P. Loeffelholz, New Orleans, for Plaintiff/Respondent, Clarence Landrum, Jr.
MURRAY, Judge.
This matter was previously before us when The Board of Commissioners of the Orleans Levee District (the OLB) applied for a supervisory writ to review a trial court judgment denying its exceptions of res judicata, no cause of action and lack of subject matter jurisdiction, as well as its motion for summary judgment. Although we granted the writ and fully reviewed аll materials filed by the parties, relief was denied because we found “[t]he pleadings and evidence submitted... do not establish that [the OLB] is entitled to any relief which would end its involvement in this litigation.” However, the Supreme Court granted the OLB‘s writ and remanded to this Court “for a full opinion after briefing and argument.” After full reconsideration in compliance with the Supreme Court‘s order, we affirm the judgment before us for the reasons which follow.
FACTS AND PROCEEDINGS BELOW
Clarence Landrum, who was a major and second-in-command in the OLB Police Department, was involved in an automobile accident on August 31, 1989 while he was on duty. Pursuant to OLB guidelines, he submitted to urinalysis and a blood test to detect the presence of alcohol or illegal drugs. The urine specimen was reported as containing tetrahydrocannabinol, the chief intoxicant in marijuana, a controlled substance. Mr. Landrum subsequently submitted a second urine specimen which also reportedly tested positive for marijuana. Mr. Landrum was suspended without pay based upon these reports. In the petition, it is alleged that inadequate security and chain of custody procedures in the urinalysis resulted in inaccurate results, and that the OLB initially refused to give Mr. Landrum the name and address of the facility that performed the urinalysis.
Mr. Landrum‘s job suspension and the reason therefor were reported by the local newspaper, the Times-Picayune, which cited “board sources” as originating the story. The newspaper account said the information had been confirmed by “[s]everal Levee Board members and a state Civil Service Department sоurce,” then quoted two OLB board members who indicated that Mr. Landrum was going to appeal the suspension. One of the board members was also quoted as stating that Mr. Landrum volunteered to take the drug test, and that he [the board member] hoped that further testing would prove the positive test results faulty. According to the newspaper, this board member felt that Mr. Landrum would be exonerated.
After an administrative hearing, Mr. Landrum‘s employment was terminated by the OLB. This action was appealed to the state Civil Service Commission, but the parties entered into a two-page handwritten settlement agreement prior to the scheduled hearing of that appeal. Under their compromise, the OLB rescinded the suspension and termination, retroactively reinstating Mr. Landrum with full back pay and benefits; all record of the disciplinary action was to be deleted from his personnel file. Under the same agreement, however, Mr. Landrum voluntarily resigned effective that date, June 20, 1990.
Mr. Landrum filed this civil suit in August 1990 against the OLB and other defendants.1 He asserts that because the urinalysis results constitute “consumer reports” under the federal Fair Credit Reporting Act (FCRA), the OLB‘s initial failure to disclose the testing facility‘s name and address violated both the FCRA2 and the Louisiana Unfair Trade Practices and Consumer Protection
In January 1995, the OLB filed exceptions of lack of subject matter jurisdiction, res judicata, and no cause of action as well as a motion for summary judgment of dismissal of the suit. After hearing, the trial court rendered judgment overruling all exceptions and denying the motion; no written or oral reasons were furnished. This writ application followed.
DISCUSSION
1. Lack of subject matter jurisdiction
We first address the OLB‘s exception of lack of subject matter jurisdiction since a determination that the district court did not have subject matter jurisdiction will end our review. See
The Louisiana Constitution grants to the Civil Service Commission “the exclusive power to hear and decide all removal and disciplinary cases.”
We agree with the OLB that, to the extent that Mr. Landrum sought a remedy for his loss of employment, such a claim had to be pursued through the Civil Service Commission. As noted above, however, the OLB rescinded all disciplinary actions against Mr. Landrum in the compromise agreement of June 20, 1990, and he voluntarily resigned his position. Therefore, Mr. Landrum has no claim against the OLB arising from either his suspension or removal.
The constitutional provision that grants judicial authority to the Commission is narrowly construed since it is an exception to the general rule that district courts have jurisdiction over all civil matters. Greenleaf v. DHH, Metropolitan Developmental Center, 594 So.2d 418, 425 (La.App. 1st Cir.1991) [citing In re Investigation of Smith, 546 So.2d 561, 563 (La.App. 1st Cir.), writ denied, 550 So.2d 636 (La.1989)], writ denied, 596 So.2d 196 (La.1992). The Civil Service Commission does not have jurisdiction of tort cases nor can it award monetary damages for tortious conduct. Greenleaf, 594 So.2d at 425; see also Moore v. Board of Supervisors of L.S.U., 559 So.2d 548 (La.App. 2nd Cir.1990). Under the circumstances of this case, Mr. Landrum‘s tort claims are not an attempt to circumvent the exclusive jurisdiction of the Civil Servicе Commission; he may look to the courts for damages for defamation and other torts arising out of the facts alleged here. Moore, supra: Manale v. City of New Orleans, 673 F.2d 122 (5th Cir.1982); see also Greenleaf, supra. For this reason, the trial court correctly overruled the exception to its subject matter jurisdiction.
2. Exception of res judicata
The next issue to be determined is whether the trial court properly overruled the exception of res judicata. The OLB contends that because the parties entered into a settlement agreement in June 1990, after all of the events and actions asserted as wrongful had occurred, Mr. Landrum‘s cоmpromise necessarily included a waiver of all claims arising from those events.
We agree with the OLB‘s contention that the written contract between Mr. Landrum and the OLB is clearly a transaction or
The language of the agreement at issue here does not suggest any intent to compromise or settle any claims other than Mr. Landrum‘s assertion that he was erroneously suspended and discharged by the OLB. As noted above, the contract states that all disciplinary actions were rescinded by the OLB, and Mr. Landrum instead resigned, further waiving “any right to any type of future employment” with the OLB. Most importantly, the agreement specifies in paragraph five that “[t]here are no other terms to this agreement.”
The OLB‘s reliance on Ingram Corporation v. J. Ray McDermott & Co., Inc., 698 F.2d 1295, 1311-12 (5th Cir.1983), is therefore misplaced. In Ingram, the court determined that even antitrust claims not known to exist at the time of the compromise were concluded because the agreement specified that the parties had settled “any and all claims ... past, present, or future.” Id. In stark contrast to that language, the parties to the agreement at issue here expressly limited the scope of their compromise to the terms mentioned in the document. Because this contract pertains only to the OLB‘s suspension and termination actions, without mention of the other conduct asserted here as wrongful, the trial court did not err in overruling the exception of res judicata.
3. Exception of no cause of action and motion for summary judgmеnt
By these pleadings, the OLB asserts that Mr. Landrum neither stated a cause of action in his petition nor can he prove all essential elements of his claims for the commission of unfair trade practices, intentional or negligent infliction of emotional distress, defamation and invasion of privacy.
The standards for evaluating an exception of no cause of action are well established:
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. Darville v. Texaco, Inc., 447 So.2d 473 (La. 1984). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action.
La.Code Civ. Proc. art. 931 . Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Kuebler v. Martin, 578 So.2d 113 (La.1991).
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993) (footnote omittеd). If more than one theory of recovery arises from the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered by the trial court because it results in a nonappealable interlocutory judgment.3 Id. at 1241-42. Because we are reviewing this matter in an exercise of our supervisory jurisdiction, however,
As with the OLB‘s exception, the stаndard for review of its motion for summary judgment is well settled in the law. In determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. This standard of review requires the appellate court to look at “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits,” in making an independent determination that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.
a. Claim for commission of unfair trade practices
In this case, Mr. Landrum asserts that the OLB committed an unfair trade practice when it took action against him based upon the purportedly unreliable results of the urinalysis while refusing to inform him of the name and address of the laboratory which had performed the test. Thе OLB contends that because Mr. Landrum was neither a consumer nor a business competitor, but only its employee, he cannot establish a claim for a violation of
We note that the OLB‘s argument regarding this claim is actually that of an exception of no right of action, since it is
b. Claim for infliction of emotional distress
In White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991), the Supreme Court stated:
[I]n order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.
The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.
In asserting this claim, Mr. Landrum‘s petition refers to his factual allegations and then states that “[t]he actions of OLB [and the other defendants] as set forth above, intentionally or, in the alternative, negligently inflicted great emotional distress and damage upon plaintiff.” As with the unfair trade practice claim, however, we find that the character of the OLB‘s conduct was not extreme, atrocious or intolerable, nor does it evince any intent to cause emotional distress. Compare Ratcliff v. Boydell, 93-0362, 92-0630, pp. 12-13 (La.App. 4th Cir. 4/3/96), 674 So.2d 272, 280 (“defendants’ vindictive, dilatory, and obstreperous behavior” in litigating a fee dispute for six years constituted intentional infliction of emotional distress). Based on this finding, and because Louisiana law does not recognize an independent tort of negligent infliction of emotional distress, Moresi v. Dept. of Wildlife & Fisheries, 567 So.2d 1081, 1095-96 (La.1990), no cause of action has been stated for infliction of emotional distress.
c. Claim for defamation
The еlements of an action for defamation are: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Landry v. Roberson Advertising Service, Inc., 95-0095, p. 6 (La.App. 4th Cir. 8/23/95), 660 So.2d 194, 197. Publication refers to any nonprivileged communication of defamatory words, written or oral, and it renders a defendant liable “for all republication that is the natural and probable consequence of the author‘s act.” Martin v. Lincoln General Hospital, 588 So.2d 1329, 1333 (La.App. 2d Cir.1991), writ denied, 592 So.2d 1302 (La.1992), and cases cited therein.
Statements that accuse a person of criminal conduct are defamatory per se, Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196, 198 (La.1980), which generally relieves a plaintiff of the need to prove malice, Fourcade v. City of Gretna, 598 So.2d 415, 419 (La.App. 5th Cir. 1992); Martin, 588 So.2d at 1333. Where the plaintiff is a “public official,” however, he must establish that the defendant acted with actual malice, i.e., that he knowingly communicated false information, or that he acted without regard to whether the communication was true or false. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105, p. 5 (La.1/17/95), 648 So.2d 866, 869, cert. denied, ___ U.S. ___, 115 S.Ct. 2556, 132 L.Ed.2d 810 (1995). “[T]he ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control ovеr the conduct of governmental affairs.” Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 676, 15 L.Ed.2d 597 (1966) (footnote omitted).
Mr. Landrum‘s petition alleges that before the accuracy of the drug test had been verified, and despite the fact that the results were to be confidential, “members and/or officers and/or employees and/or agents and/or representatives of OLB ... published by written and/or oral communication” the fact that the test had been positive for illegal drugs. It is further alleged that this information, asserted to be “equivalent to an accusation that plaintiff had committed a crime,” was circulated by those for whom the OLB is vicariously liable to such an extent that it resulted in publication in the local newspaper. The petition asserts that the positive test result was false and inaccurate, and that Mr. Landrum thereby suffered a loss of reputation and emotional distress from the wrongful disclosure. These factual allegations are sufficient to state a cause of action for defamation against the OLB.
However, when the OLB moved for summary judgment and presented evidence to negatе his claim, Mr. Landrum was required to present countervailing evidence “of sufficient quality and quantity to demonstrate that he likely will be able to meet his burden of proof at trial.” Tarpley v. Colfax Chronicle, 94-2919, p. 2 (La.2/17/95), 650 So.2d 738, 740. The evidence presented in opposition to the motion in this case does not meet that standard.
The OLB‘s argument in support of dismissal of this claim rests primarily on the contention that Mr. Landrum was a “public official” who must prove actual malice under the New York Times standard. While the only evidence cited as establishing this status is an affidavit stating that he was second-in-command of the Levee Board Police, Mr. Landrum‘s appeal of his dismissal was included among the OLB‘s documents and states in part:
My duties include interviewing, processing, orientation and training of new personnel evaluating of personnel within the police department; establishing and coordinating police/Board policies and procedures; review and initiate disciplinary actions taken regarding police personnel; chief liason [sic] officer between the agency and all other law enforcement or related agencies; coordinating and supervising special events that reflect Board responsibility; and any internal assignments/duties as needed by the Board. [Emphasis added.]7
Mr. Landrum presented no evidence nor argument concerning his status as a “public official.” Based upon his description of his duties, which appears to include “substantial responsibility for or control over the conduct of” the Levee Board police, we find Mr. Landrum to be a “public official” as defined by the U.S. Supremе Court. Therefore, to prevail on his defamation claim he must prove actual malice by the OLB.
The OLB‘s evidence includes copies of all pertinent laboratory test results, all disciplinary correspondence from the OLB to Mr. Landrum, and a complete transcript of the testimony taken at the administrative hearing which resulted in the recommendation that Mr. Landrum‘s employment be terminated. The clear tenor of this evidence is that all proceedings were conducted in accordance with еstablished policy, and with good faith reliance on the capabilities and reliability of the laboratory which performed the testing at issue. The only opposing evidence is an affidavit by a forensic toxicologist who
d. Claim for invasion of privacy
Louisiana jurisprudence has defined the right to privacy as the “right to be let alone” or “the right to an ‘inviolate personality,‘” and has recognized that the violation of that right is actionable. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388-89 (La.1979). An actionable invasion of privacy occurs only when a defendant‘s conduct is unreasonable and seriously interferes with another‘s privacy interest. Id. at 1389.
Mr. Landrum asserted in his petition that because no one outside of the OLB had a legitimate reason to know the results of the drug tests, the disclosure of that information was unreasonable and a serious interference with his interest in privacy. Although Jaubert recognized four instances in which an individual‘s right to privacy might be invaded, we find that Mr. Landrum has stated a cause of action based upon two of the grounds delineated in that case: an invasion by publicity that unreasonably places the plaintiff in a false light before the public, and an invasion by the unreasonable public disclosure of embarrassing facts.
Arguing for dismissal of this claim in its motion for summary judgment, the OLB asserts that “as with defamation, there can be no recovery where a public official is involved absent proof of actual malice,” citing Rosales v. City of Eloy, 122 Ariz. 134, 593 P.2d 688 (1979). Alternatively, the OLB claims its communications were protected by privilege under Boyd v. Community Center Credit Corp., 359 So.2d 1048 (La.App. 4th Cir.1978). However, there is no indication given as to the particular evidence the OLB relies upon to defeat this claim.
We reject the OLB‘s argument that Mr. Landrum must show actual malice in order to recover from the OLB for an invasion of privacy. While such a requirement has been discussed in cases involving media defendants, see, e.g., Jaubert, 375 So.2d at 1389-90 and the cases cited therein, we find nothing in Louisiana law to suggest that a non-media defendant can only be liable for an invasion of privacy involving a falsehood. In this action, Mr. Landrum is not asserting that the Times-Picayune should not have published the story, but that the OLB is liable for allowing highly personal and embarrassing information to go beyond those with a legitimate need to know and into the public domain. Furthermore, while Boyd involved the well-recognized privilege regarding an employer‘s disclosures to an unemployment agency, we are aware of no privilege which would protect an employer‘s public disclosure of embarrassing facts, as alleged here. Instead, the reasonableness of the public disclosure of the results of the drug testing is a factual question that should not be decided on summary judgment.
Accordingly, we find that the OLB has not established that there is no material factual dispute regarding Mr. Landrum‘s claim for invasion of privacy. While the newspaper article credits “board sources” for disclosing the information, the OLB has presented no evidence to rebut the inference that these “sources” were those for whom it is vicariously liable. Although Mr. Landrum will bear the burden of proving both that the OLB was at fault for the disclosure and that its unreasonable conduct cоnstituted a serious interference with his privacy interest, the OLB has not shown that it is entitled to a judgment of dismissal as a matter of law. Therefore, the trial court was correct when it refused to dismiss Mr. Landrum‘s claim against the OLB for invasion of privacy.
The trial court has subject matter jurisdiction of these tort claims, and the exception of res judicata was properly overruled. While Mr. Landrum failed to state a cause of action for unfair trade practices and intentional or negligent infliction of emotional distress, the district court did not err in overruling the exception of no cause of action based upon the legally sufficient allegations of defamation and invasion of privacy. Similarly, although Mr. Landrum failed to establish a triable claim for defamation, unresolved factual issues regarding his claim for invasion of privacy prevented the granting of the OLB‘s motion for summary judgment of dismissal. Therefore, the judgment below is affirmed.
AFFIRMED.