Rory T. White and Romaine L. White Individually and on Behalf of Their Minor Child, Richard White v. New Orleans Center for the Creative ArtsRory T. White and Romaine L. White Individually and on Behalf of Their Minor Child, Richard White v. New Orleans Center for the Creative Arts
Michael Samuel Zerlin
ATTORNEY AT LAW
123 East Seventh Street
Thibodaux, LA 70301
COUNSEL FOR PLAINTIFFS/APPELLANTS
Angela J. O‘Brien
William David Coffey
LOUISIANA ATTORNEY GENERAL‘S OFFICE
1450 Poydras Street, Suite 900
New Orleans, LA 70112
Jeff
LOUISIANA DEPARTMENT OF JUSTICE
P. O. Box 94005
Baton Rouge, LA 70804
COUNSEL FOR DEFENDANTS/APPELLEES
REVERSED AND REMANDED
September 25, 2019
Plaintiffs, Rory T. White, Romaine L. White, and Richard White appeal the trial court‘s judgment of November 27, 2018, as amended on March 14, 2019, which granted the exception of no cause of action filed by Defendants, New Orleans Center for the Creative Arts, Kyle Wedberg, Blake Coheley, Amy Alvarez, and Lee Randall, and dismissed their lawsuit with prejudice. For the following reasons, we reverse the trial court‘s ruling on the exception and remand the case to allow Plaintiffs the opportunity to amend their petition and for further proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL HISTORY
This lawsuit arises from the reporting of an alleged sexual assault of a student at New Orleans Center for the Creative Arts (“NOCCA“) by Richard White (“Richard“), another NOCCA student.
NOCCA is a public high school that provides arts education and academic instruction to qualified students from the State of Louisiana. NOCCA is an agency of the State of Louisiana created by
Kyle Wedberg, the President and CEO of NOCCA; Blake Coheley, NOCCA Director of Student Services; and Amy Alvarez, a social worker at NOCCA are all NOCCA employees/administrators. Lee Randall is the Chairman of the NOCCA Board, and according to Plaintiffs, is a public official and not an employee of NOCCA.
In February 2016, during Richard‘s twelfth grade year, NOCCA administrators were notified that Richard had allegedly committed acts of sexual misconduct against another student. Thereafter, Richard was sent home and his parents, Rory White and Romaine White (“the Whites“), were advised that Richard “had done something outside of school” that mandated NOCCA to report the allegations against Richard to the New Orleans Police Department (“NOPD“) and the Department of Children and Family Services (“DCFS“).1
NOCCA employees, Wedberg, Coheley, and Alvarez, met with the Whites and Richard (“Plaintiffs“) on February 29, 2016, about the allegations. According to Plaintiffs, NOCCA refused to name the student-accuser and refused to reveal the substance of the allegations. They allege that Richard was denied minimal due process because he was not informed of the allegations nor given an opportunity to respond to the charges or defend himself. Plaintiffs were informed that Richard was not allowed to attend class and was required to complete the rest of the semester from home. At the meeting, a letter of understanding was given to the Plaintiffs, stating that Richard would not be able to participate in any school activities, including social events, art performances, or graduation, without forty-eight hour advance approval from NOCCA administrators. Plaintiffs allege Richard was unable to attend school from February 26, 2016
On March 22, 2016, the Whites, individually and on behalf of Richard, who was a minor at the time, filed a petition for injunction, temporary restraining order, and preliminary injunction against NOCCA seeking an order to allow Richard to return to class and participate in activities and prohibiting NOCCA from interfering with Richard‘s free enjoyment thereof.2 The trial court denied the request for injunctive relief but ordered that NOCCA contact “the parents of the minor to ensure that the minor has clear instructions on his education requirements.”
On March 1, 2017, the Whites and Richard, who was named as a plaintiff in his own right as he was now over the age of majority, filed a petition for damages against NOCCA, as well as Kyle Wedberg, Blake Coheley, Amy Alvarez, and Lee Randall (“Defendants“). Plaintiffs alleged causes of action for defamation, intentional infliction of emotional distress, deprivation of Constitutional Rights, negligent supervision/failing to protect against bullying, false light invasion of privacy, conversion, and loss of consortium.3 Specifically, Plaintiffs alleged that Defendants published statements about Richard to the NOPD and the DCFS that were defamatory per se because they expressly or implicitly accused Richard of criminal conduct and/or injured his personal and professional reputation. Plaintiffs claimed Defendants’ actions were extreme and outrageous and they knew that severe emotional distress was substantially certain to follow. They alleged that Defendants acted under the color of state law when they deprived Richard of his rights to liberty, property, and privacy. Plaintiffs claimed that Defendants had a statutory duty to protect Richard against bullying from other students and failed to provide reasonable supervision to prevent other students from spreading untrue rumors, shunning Richard, and threatening harm to him. Plaintiffs alleged that Richard‘s privacy was invaded by Defendants’ actions that placed him in a false light, causing other students, teachers, and school personnel to believe that he had been expelled and/or charged with a crime. Plaintiffs claimed that when Defendants ordered Richard to leave school, they had in their custody and control items belonging to Plaintiffs, including Richard‘s hard drive, data, and lighting equipment. They claimed Defendants have declined to return these items despite repeated requests. Finally, Plaintiffs alleged that the Whites suffered as a result of the damages Richard incurred and seek damages for loss of love and affection, loss of society, and loss of consortium.
In response, Defendants filed an exception of no cause of action, claiming they have immunity from the lawsuit because Plaintiffs’ allegations against them originate from Defendants’ mandatory duty to report the accusations against Richard and
The injunction suit and the damages suit were consolidated on November 17, 2017.
The exception of no cause of action came before the trial court on October 26, 2018, and the trial court granted the exception from the bench.4 A judgment granting the exception of no cause of action was signed on November 27, 2018.5
Plaintiff filed a motion for devolutive appeal on December 5, 2018, which was signed by the trial court on December 6, 2018.
On March 12, 2019, this Court ordered the trial court to amend the November 27, 2018 judgment to include the “appropriate and necessary decretal language.”6 This Court‘s order also stayed briefing deadlines until the record was supplemented with the amended judgment. The trial court executed an amended judgment on March 14, 2019, and issued notice of signing of judgment the following day.7
DISCUSSION AND ANALYSIS
Plaintiffs raise two assignments of error. They contend that the trial court erred in granting the exception of no cause of action because Defendants’ alleged qualified immunity as a mandatory reporter cannot be raised on an exception of no cause of action and because the immunity for mandatory reporting is only applicable to defamation claims and not a defense to the other allegations against Defendants. Plaintiffs also claim the trial court erred in granting the exception without allowing Plaintiffs the opportunity to amend pursuant to
Assignment of Error No. 1: Granting of the Exception of No Cause of Action
The peremptory “exception of no cause of action raises a question of law,” and a court of appeal reviews the district court‘s ruling de novo. Ocwen Loan Servicing, LLC v. Porter, 2018-0187, p. 3 (La. App. 4 Cir. 5/23/18), 248 So.3d 491, 495.
“The function of the peremptory exception is to have the plaintiff‘s action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.”
A peremptory exception of no cause of action questions whether the law extends a remedy against a defendant to anyone under the factual allegations of a petition. Mid-S. Plumbing, LLC v. Dev. Consortium-Shelly Arms, LLC, 2012-1731, p. 4 (La. App. 4 Cir. 10/23/13), 126 So.3d 732, 736. In other words, an exception of no cause of action tests “the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.” Green v. Garcia-Victor, 2017-0695, p. 4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453 (quoting Moreno v. Entergy Corp., 2010-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706).
“In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition.” Green, 2017-0695, p. 4, 248 So.3d at 453 (quoting 2400 Canal, LLC v. Bd. of Sup‘rs of Louisiana State Univ. Agr. & Mech. Coll., 2012-0220, p. 7 (La. App. 4 Cir. 11/7/12), 105 So.3d 819, 825). “A court cannot consider assertions of fact referred to by the various counsel in their briefs that are not pled in the petition.” Id. “The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law.” Id. Further, “any doubt must be resolved in the plaintiffs’ favor.” Id.
However, the mere conclusions of the plaintiff unsupported by facts do not set forth a cause of action. Green, 2017-0695, p. 4, 248 So.3d at 453-54 (citing 831 Bartholomew Investments-A, L.L.C. v. Margulis, 2008-0559, p. 10 (La. App. 4 Cir. 9/2/09), 20 So.3d 532, 538). Plaintiffs argue that the trial court erred in granting the exception because a mandatory reporter‘s qualified immunity cannot be asserted on an exception of no cause of action and because the immunity for a mandatory reporter is only relevant to defamation claims and not a defense to the other allegations against Defendants.
A mandatory reporter is defined in
(17) “Mandatory reporter” is any of the following individuals:
* * *
(d) “Teaching or child care provider” is any person who provides or assists in the teaching, training, and supervision of a child, including any public or private teacher, teacher‘s aide, instructional aide, school principal, school staff member, bus driver, coach, professor, technical or vocational instructor, technical or vocational school staff member, college or university administrator, college or university staff member, social worker, probation officer, foster home parent, group home or other child care institutional staff member, personnel of residential home facilities, a licensed or unlicensed day care provider, or any individual who provides such services to a child in a voluntary or professional capacity.
* * *
(23) “Person” means any individual, partnership, association, agency, or corporation, and specifically shall include city, parish, or state law enforcement agencies, and a parish or city school board or a person employed by a parish or city school board.
A. (1) ... Reports in which the abuse or neglect is believed to be perpetrated by someone other than a caretaker, a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or a person living in the same residence with the parent or caretaker as a spouse whether married or not, and the caretaker is not believed to have any responsibility for the abuse or neglect shall be made immediately to a local or state law enforcement agency. Dual reporting to both the department and the local or state law enforcement agency is permitted.
Furthermore,
The immunity is not available to anyone who makes a report “known to be false or with reckless disregard for the truth of the report.”
Plaintiffs do not allege in the petition which NOCCA employee or administrator actually reported the allegation against Richard to the NOPD or the DCFS. However, school and educational personnel, such as principals, teachers, social workers, and staff members are mandatory reporters under
Plaintiffs claim that neither NOCCA nor Lee Randall, the chairman of the board of directors, is entitled to immunity. Plaintiff contends that NOCCA is a state agency and not a person as defined in
However, NOCCA seeks immunity as an educational institution which provides teaching services to a child pursuant to
Immunity for a Mandatory Reporter
A mandatory reporter‘s immunity is not absolute; however, it is qualified by the good faith requirement. See
Plaintiffs claim that the qualified immunity of a mandatory reporter constitutes an affirmative defense and cannot be
An affirmative defense is a defense that “raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action.” Fin & Feather, LLC v. Plaquemines Par. Gov‘t, 2016-0256, pp. 6-7 (La. App. 4 Cir. 9/28/16), 202 So.3d 1028, 1033 (citing Bienvenu v. Allstate Ins. Co., 2001-2248, p. 5 (La. App. 4 Cir. 5/8/02), 819 So.2d 1077, 1080, Allvend, Inc. v. Payphone Commissions Co., Inc., 2000-0661, p. 3 (La.App. 4 Cir. 5/23/01), 804 So.2d 27, 29). Louisiana jurisprudence has long established that an affirmative defense may not form the basis of a peremptory exception when the asserted defense goes to the merits of the case.11 Mouton v. Hebert‘s Superette, Inc., 2010-787, p. 5 (La. App. 3 Cir. 12/8/10), 53 So.3d 561, 564 (citing Marquis v. Cantu, 371 So.2d 1292, 1294 (La. App. 3 Cir. 1979); Alside Supply Co. v. Ramsey, 306 So.2d 762, 763 (La. App. 4 Cir. 1975); Weil v. State Farm Fire & Cas. Co., 323 So.2d 524, 526 (La. App. 4 Cir. 1975)). Rather, as an affirmative defense, the issue should be referred to the merits, and a motion for summary judgment is, therefore, the proper procedure for addressing it prior to trial. Id. (citing Deshotel v. Guichard Operating Co., Inc., 2003-3511, p. 2 (La. 12/17/04), 916 So.2d 72, 74).
Here, the immunity created by
from liability provided that the report was made in good faith and thus operates as an affirmative defense.
Additionally, in Bd. of Examiners of Certified Shorthand Reporters Through Juge v. Neyrey, 542 So.2d 56, 64 (La. App. 4 Cir. 1989), which Plaintiffs rely upon, this Court found that the decision as to whether a party acted in good faith for the purposes of immunity required consideration of evidence and thus was not an issue properly raised or decided on exception of no cause of action.12 The Board of Examiners of Certified Shorthand Reporters had sought an injunction against an individual to prohibit him from taking depositions. The defendant, Nick Neyrey, filed a reconventional demand against the Board. The Board filed several exceptions, including an exception of no cause of action based on its governmental immunity, which the trial court granted.13 This Court found that
Although the Board and its members may very well be able to prove the affirmative defense of good faith at the trial on the merits of this case, we cannot make a ruling on an exception of no cause of action as to whether such a defense has been proved.
* * *
[T]he Board and its members seek to assert an affirmative defense of good faith. However, determination of the presence or absence of good faith requires consideration of evidence. L[a]. [C.C.P. art.] 931 precludes consideration of evidence on an exception of no cause of action. Goldstein v. Serio, 496 So.2d 412 (La. App. 4 Cir.1986)[.]14
Defendants counter it would be contrary to the intent of the immunity statute to grant immunity to mandatory reporters but then require them to litigate the claims that the immunity statute was enacted to prevent. Defendants cite S.G. v. City of Monroe, 37,103, p. 8 (La. App. 2 Cir. 4/11/03), 843 So.2d 657, 662, which stated that “the immunity afforded the mandatory reporters is meant to encourage those with reasonable cause for suspicion to report suspected cases, free of the chilling effect presented by the threat of lawsuits.” Significantly, the S.G. case was decided on a motion for summary judgment, in which the parties presented evidence regarding the good faith of the mandatory reporter; not on an exception of no cause of action, which is based only on the allegations of the petition and no evidence is admissible.
Defendants also claim that jurisprudence allows for immunity to be addressed on an exception of no cause of action. In support of their position,
Defendants rely upon Vincent v. Milligan, 2004-1207 (La. App. 1 Cir. 6/10/05), 916 So.2d 238.
In Vincent, a father filed suit against the state, a hospital, and physicians for emotional distress after a physician made a report of suspected child abuse following an examination of the father‘s daughter in the hospital. The state filed an exception of no cause of action, claiming that the defendants were immune from suit under
The First Circuit further concluded that “good faith is presumed and the plaintiff has the burden to allege the facts needed to defeat statutory immunity.” Vincent, 2004-1207, p. 6, 916 So.2d at 242. The Court ultimately found that the father failed to state a cause of action against the state or the state‘s employee (the physician, who examined the father‘s daughter and filed a report of suspected child abuse) based on statutory immunity.15 The Vincent Court, however, found that the father should be granted the opportunity to amend his petition to state a claim against the physician to allege bad faith. The First Circuit thus affirmed the granting of the exception of no cause of action and remanded the case for further proceedings.
The Vincent case can be distinguished from the instant case because it allowed the petition to be amended to state a cause of action, whereas the trial court in the present case dismissed Plaintiffs’ entire suit without giving them the opportunity to amend. Moreover, while Vincent provides support for a determination of immunity on an exception of no cause of action and noted that good faith is presumed, it also recognizes that the issue of the immunity is more appropriate on motions for summary judgment because it allows for the presentation of evidence.16 Additionally, although good faith on part of Defendants as mandatory reporters may be presumed, this presumption can be rebutted by proof that Defendants falsely or recklessly alerted law enforcement. See
extended to ... [a]ny person who makes a report known to be false or with reckless disregard for the truth of the report“). Moreover, the conclusion reached in Vincent is not binding on this Court whereas this Circuit in Neyrey explicitly held that presence or absence of good faith for purposes of immunity from liability could not
Plaintiffs also argue that Defendants’ immunity from liability under
bullying; false light invasion of privacy; intentional infliction of emotional distress; and loss of consortium.
Defendants contend that the trial court‘s ruling that all the allegations made against Defendants originate from their mandatory reporting duty is supported and again claim that Plaintiffs’ argument that their immunity only applies to defamation would defeat the purpose of the immunity statute, i.e., protecting victims and ensuring that mandatory reporters are free to make their reports without fear of repercussions of lawsuits. See S.G. 37,103, p. 8, 843 So.2d at 662.
We find, however, that Plaintiffs have in fact alleged claims that arise separate and independent from Defendants’ reporting duty and thus would not impinge on the objective of the immunity provisions. For example, Plaintiffs alleged a cause of action against Defendants in their petition for conversion that developed subsequent to Defendants’ reporting of the incident to authorities.18
“[C]onversion is an intentional tort and consists of an act in derogation of the plaintiff‘s possessory rights.” Lusich v. Capital One, ACP, LLC, 2016-0052, p. 8 (La. App. 4 Cir. 8/31/16), 198 So.3d 1272, 1276-77 (quoting Melerine v. O‘Connor, 2013-1073, p. 5 (La. App. 4 Cir. 2/26/14), 135 So.3d 1198, 1203). “To constitute a conversion, an intentional dispossession and/or exercise of dominion or control over the property of another in denial of or inconsistent with the owner‘s rights must be established.” Id. In their petition, Plaintiffs claim that when Defendants ordered Richard to leave school,
requests Defendants have failed to and refused to return these items. While Defendants could have compelled Richard to leave NOCCA‘s premises following the accusations against him, Defendants’ continued possession and control over Plaintiffs’ property is distinct from Defendants’ duty to report the allegations of the student accuser. Additionally, Plaintiffs allege that Defendants remain in possession of and refused to return their property as of the filing of the lawsuit. Furthermore, all doubts regarding whether a petition sets forth a cause of action should be resolved in favor of the plaintiff so as to afford litigants their day in court. Zeitoun v. City of New Orleans, 2011-0479, p. 7 (La. App. 4 Cir. 12/7/11), 81 So.3d 66, 72. Plaintiffs’ petition thus states a cause of action for conversion and the trial court erred in dismissing Plaintiffs’ entire lawsuit on the basis of Defendants’ statutory immunity.
Assignment of Error No. 2: Opportunity to Amend the Petition
Plaintiffs argue that the trial court erred in granting the exception of no cause of action without permitting Plaintiffs the opportunity to amend under
Our jurisprudence indicates that “[t]he right to amend a petition following the sustaining of a peremptory exception is not absolute.” Hershberger v. LKM Chinese, L.L.C., 2014-1079, p. 6 (La. App. 4 Cir. 5/20/15), 172 So.3d 140, 145. “Amendment is not permitted when it would constitute a ‘vain and useless act.’ ” Id. (quoting Smith v. State Farm Ins. Companies, 2003-1580, p. 6 (La. App. 4 Cir. 3/3/04), 869 So.2d 909, 913). However, this Court also has stated that “it is mandatory that the trial judge permit an amendment of the pleadings when there is a conceivable possibility that a cause of action may yet be stated by a plaintiff.” Cooper v. Pub. Belt R.R., 2000-0378, p. 4 (La. App. 4 Cir. 12/20/00), 776 So.2d 639, 641.
As discussed above, mandatory reporters are not immune from lawsuit when the report is false or made with reckless disregard for the truth. See
CONCLUSION
The trial court erred in granting Defendants’ exception of no cause of action. Although Louisiana law requires the mandatory reporting of suspected child abuse and/or the allegations of sexual misconduct and grants immunity from liability for those whom provide teaching services and report in good faith, a decision as to whether Defendants acted in good faith in reporting the accusations against Richard is an affirmative defense, involves the consideration of evidence, and therefore was not appropriate on an exception of no cause of action. Additionally, Plaintiffs have alleged causes of action against Defendants that arise separate from their reporting duty and the trial court erred in dismissing the entire petition based on Defendants’ immunity. Accordingly, the trial court erred in granting the exception of no cause of action.
For these reasons and the reasons stated above, we reverse the trial court judgment granting the exception of no cause of action filed by Defendants and remand the case to the trial court in order to allow Plaintiffs to amend their petition to state a cause of action and for further proceedings consistent with this opinion.
REVERSED AND REMANDED
Notes
NOCCA is a mandatory reporter under
La. Children‘s Code article 603(17)(d) . This reporting is clearly mandated by theLouisiana Children‘s Code articles 609(A)(1) ;610 .The mandatory duty is to encourage those with reasonable cause for suspicion to report possible causes of sexual abuse and is sought to protect victims, especially minors, by ensuring appropriate authorities are alerted as soon as possible.
Louisiana law provides immunity from lawsuit for mandatory reporters to ensure that mandatory reporters are free to make their reports without fear of repercussions through civil lawsuit.
La. Ch.C. art 611(A)(1)(a) [provides]:No cause of action shall exist against any:
Person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter.
Additionally,
La. R.S. 14:131.1 imposes penalties and fines upon persons who fail to report the commission of rape and sexual abuse.The allegations made against NOCCA arise out of NOCCA‘s mandated reporting of the alleged incident pursuant to
La. Ch.C. arts. 609 and610 . Plaintiffs have no cause of action against NOCCA for the reporting of the alleged incident. NOCCA was mandated by law to report the allegations, which NOOCA did. NOCCA is granted immunity from lawsuit pursuant to its decision to report the allegation. Plaintiffs have no cause of action against NOCCA based upon the facts asserted.
The amended judgment clarified that all of Plaintiffs’ claims were dismissed.IT IS ORDERED, ADJUDGED and DECREED that the Defendants[,] the New Orleans Center for the Creative Arts (NOCCA), Kyle Wedberg, Blake Coheley, Amy Alvarez, and Lee Randall[‘s] Exception of No Cause of Action for all of Plaintiffs[,] Rory White, Romaine White and Richard White‘s claims is sustained; that Plaintiffs[,] Rory White, Romaine White and Richard White‘s suit be dismissed with prejudice; and that this Judgment be designated as a Final Judgment.
A. (1)(a) Any person who, pursuant to Children‘s Code Article 609(A), is required to report the abuse or neglect of a child and knowingly and willfully fails to so report shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.
(b)(i) Any person who, pursuant to Children‘s Code Article 609(A), is required to report the sexual abuse of a child, or the abuse or neglect of a child that results in the serious bodily injury, neurological impairment, or death of the child, and the person knowingly and willfully fails to so report shall be fined not more than three thousand dollars, imprisoned, with or without hard labor, for not more than three years, or both.
Neyrey, 542 So.2d at 62.[T]he actions taken by the Board were authorized by the law at the time, were in good faith, under color of legal authority and in furtherance of a legitimate state interest. Under these circumstances, the Board was entitled to the good faith defense to Neyrey‘s claim. The court also said that Neyrey could not remove the grounds for the exception of no cause of action by amending the pleadings.
Id. at 65.Because the trial court incorrectly decided that the good faith defense had been established, Neyrey was apparently not given an opportunity to amend his reconventional demand. We are unable to presume at this time that Neyrey will not be able to allege sufficient facts to state a cause of action. Therefore, he must be given an opportunity to attempt to amend his reconventional demand to state a cause of action against the Board and its members.
Vincent, 2004-1207, pp. 6-7, 916 So.2d at 242-43.[O]n the face of the petition, Dr. Milligan is protected by the immunity granted by
Louisiana Children‘s Code article 611 . He was a health care practitioner who made a good faith report of suspected child abuse based on a lab test showing the presence of sperm cells in a child‘s urine. Thus, Mr. Vincent‘s petition fails to state a cause of action for damage from the mandatory report made by Dr. Milligan. In the absence of liability on the part of the state‘s employees, the state is not vicariously liable.