96-360 La.App. 3 Cir. 3/26/97, Guilbeaux v. Times of Acadiana, Inc.

• Decision Date: 26 March 1997
• Citation: 693 So.2d 1183
• Parties: 96-360 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1183

693 So.2d 1183

96-360 La.App. 3 Cir. 3/26/97

Kenneth J. GUILBEAUX, Plaintiff--Appellant, v. The TIMES OF ACADIANA, INC., et al., Defendants--Appellees.

No. 96-360.

Court of Appeal of Louisiana Third Circuit.

March 26, 1997.

Rehearing Denied June 18, 1997.

Anthony Fazzio, for Kenneth Guilbeaux.

John Edmund McElligott, Jr., Lafayette, for Times of Acadiana Inc., et al.

David Arthur Hurlburt, Lafayette, for Kevin Kean.

Charles S. McCowan, Jr., Mathile Watsky Abramson, Baton Rouge, for Grand Casinos, Inc.

Fred Morris Trowbridge, Jr., J. Roumain Peters, III, New Orleans, for American Family Mutual Insurance Co.

Before THIBODEAUX, COOKS and GREMILLION, JJ.

[96-360 La.App. 3 Cir. 1] THIBODEAUX, Judge.

Kenneth J. Guilbeaux appeals two separate judgments made by two separate trial courts. One held that statements made by defendant, Kevin M. Kean, about his business dealings with Mr. Guilbeaux which were subsequently published in The Times of Acadiana were not defamatory. The other trial court found that statements made in conversation between Mr. Kean and Ann Myers and in conversation between Mr. Kean and Kim Favaloro were also not defamatory and [96-360 La.App. 3 Cir. 2] granted summary judgment in favor of Mr. Kean and Grand Casinos, another named defendant.

We affirm the judgments of the trial courts for the following reasons.

I. ISSUES

The issues presented on appeal are whether the trial court properly granted: (1) Mr. Kean's and Grand's exceptions of no cause of action regarding the statements made to The Times of Acadiana; and, (2) Grand's and Mr. Kean's summary judgment motions regarding the statements made to two individuals, Kim Favaloro and Ann Myers.

II. FACTS

Kenneth Guilbeaux discussed the possibility of developing riverboat gambling in the Lafayette area with Kevin Kean. The relationship between Mr. Guilbeaux and Mr. Kean soured. Subsequently, Mr. Kean made statements to The Times of Acadiana regarding the future of Mr. Guilbeaux's business proposition. Mr. Guilbeaux alleges that Mr. Kean told the Times that Mr. Guilbeaux threatened his life and made it appear to The Times that Mr. Guilbeaux was a dangerous and violent man. Mr. Kean then repeated these statements to Ann Myers and to Kim Favaloro. At the time the statements were made, Mr. Kean owned and operated Kevin Kean Company which, among other activities, was a partner with Grand Casinos, Inc. in a joint venture involving gaming operations on Indian Tribal Land.

Mr. Guilbeaux filed a defamation suit against The Times, Mr. Kean, and Grand Casinos, Inc. In this initial suit, Mr. Guilbeaux alleged that he was defamed [96-360 La.App. 3 Cir. 3] by the publication of an article in The Times which discussed his business dealings with Mr. Kean and Grand. The trial court found, and this court affirmed, that the alleged defamatory statements did not state a cause of action in defamation as it relates to the Times. Since Mr. Guilbeaux's appeal on Mr. Kean's and Grand Casinos' exceptions of no cause of action was an appeal of a partial final judgment and, therefore, premature, we remanded these proceedings. See Guilbeaux v. The Times of Acadiana, 94-1270 (La.App. 3 Cir. 8/9/95); 661 So.2d 1027 ("Guilbeaux I ").

Mr. Guilbeaux alleged that Mr. Kean made defamatory statements to Ms. Myers and Ms. Favaloro. Mr. Kean and Grand brought summary judgment motions before the trial court amid various other motions. The Honorable Judge Thomas Duplantier granted Mr. Kean's and Grand's motions. The court found that Mr. Kean had no authority to represent Grand in the discussion held between Mr. Kean and Mr. Guilbeaux. The court also found that the conversations among Mr. Kean and Ms. Myers and Ms. Favaloro were substantially the same statements and allegations set forth in The Times of Acadiana, which were previously held to not be defamatory.

III.

LAW & DISCUSSION

No Cause of Action

Mr. Guilbeaux argues that Judge Cox erred when he concluded that the statements made by Mr. Kean to the Times of Acadiana were not defamatory and subsequently dismissed the case against Grand, The Times of Acadiana, and Mr. Kean in relation to the statements made in the newspaper. This court has determined this issue already as it relates to statements published in the Times of Acadiana in Guilbeaux I where we held that the published statements did not constitute defamatory words and were not actionable. Guilbeaux, 661 So.2d 1027. This court [96-360 La.App. 3 Cir. 4] did not address Mr. Kean's or Grand's exceptions of no cause of action because the appeal brought to us was a partial final judgment. The judgment which was the subject of the previous appeal only concerned the statements published in The Times of Acadiana. If an appeal is taken of a partial final judgment, then the trial court has jurisdiction over the remaining issues of the case. La.Code Civ.P. art. 1915. This court is now in a position to address Mr. Kean's and Grand's exceptions of no cause of action.

An appellate court's ruling on an exception is the law of the case if after remand the same point is again asserted upon a second appeal to the same court. Keller v. Thompson, 134 So.2d 395 (La.App. 3 Cir.1961). The "law of the case" principle allows courts to refrain from reconsidering prior rulings on the same case in a subsequent appeal. The principle relates to:

(a) the binding force of trial court rulings during later stages of the trial;

(b) the conclusive effects of appellate rulings at the trial on remand; and,

(c) the rule that an appellate court will ordinarily not reconsider its own rulings on a subsequent appeal in the same case.

Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81, 83 (La.1973). Courts apply this principle to avoid indefinite relitigation of the same issue, to reach consistent results in the same litigation, and to afford a single opportunity for argument and decision of the matter at issue. Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95); 649 So.2d 1158. All of these factors provide for efficiency in the judicial system and fairness to the parties involved. Barnett, 649 So.2d 1158. The law of the case principle is to be used as a discretionary guide. Argument is not barred in cases of "palpable former error or so mechanically as to accomplish [96-360 La.App. 3 Cir. 5] manifest injustice." Petition of Sewerage & Water Board of New Orleans, 278 So.2d at 83.

In Guilbeaux I, this court first determined that to test the sufficiency of the pleadings under an exception of no cause of action, it must determine whether the law affords a remedy on the pleadings. Guilbeaux, 661 So.2d 1027. We then analyzed the statements made according to the elements of defamation and held that the statements in the article did not constitute defamatory words. Guilbeaux, 661 So.2d 1027. The words in the article which we previously determined to be non-defamatory in relation to the Times of Acadiana are the same words which have been attributed to Mr. Kean and Grand. Accordingly, those words are also not defamatory. This is not a case where there is doubt in our prior decision. Following the principle of the law of the case, this issue has already been decided and need not be reconsidered.

Mr. Guilbeaux further alleges that the trial court incorrectly sustained Mr. Kean's and Grand's exceptions of no cause of action for negligent interference with business relations and for intentional infliction of emotional distress. These issues were also alleged on appeal and considered by this court in Guilbeaux I. The findings of Guilbeaux I are now the law of the case. In Guilbeaux I, this court found that a cause of action did not exist neither for tortious interference with business relations nor for intentional infliction of emotional distress. Guilbeaux, 661 So.2d 1027.

In this appeal, Mr. Guilbeaux alleges that the trial court incorrectly sustained exceptions of no cause of action for negligent interference with a business relation because the facts in this case fall squarely within the parameters set forth in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989). The supreme court in 9 [96-360 La.App. 3 Cir. 6] to 5 Fashions, Inc., recognized a limited cause of action for tortious interference with contract. The tort was divided into five elements:

(1) The existence of a contract or legally protected interest between the plaintiff and the corporation;

(2) The corporate officer's knowledge of the contract;

(3) The corporate officer's intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome;

(4) Absence of justification on the part of the officer;

(5) Causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought by the officer.

9 to 5 Fashions, Inc., 538 So.2d at 234.

Previously, this court found that the record revealed no facts which supported this claim in relation to the statements published in The Times. Guilbeaux, 661 So.2d at 1033. This finding has not changed, although we wish to modify our language regarding the application of the principles expressed in 9 to 5 Fashions, Inc. Guilbeaux I stated that tortious interference with a contract applied only to a corporate officer interfering with an employer's contractual relations with third persons. That language is too limiting. Instead, we agree with our circuit's recent opinion in Cowen v. Steiner, 96-830 (La.App. 3 Cir. 1/22/97); 689 So.2d 516 which extended 9 to 5 Fashions, Inc. beyond the circumscribed sphere of a corporate officer. Even if this court would consider Mr. Kean as a corporate officer of Kevin Kean Company, there is still no evidence of a contractual relationship existing between Mr. Guilbeaux and Mr. Kean, nor is there evidence of a contractual relationship between Mr. Guilbeaux and Grand Casinos. The record simply does not support an action in tortious...