Alexander v. Blue Williams, L. L.P.

Decision Date23 January 2019
Docket NumberNO. 2018-CA-0776,2018-CA-0776
PartiesDWAYNE ALEXANDER v. BLUE WILLIAMS, L.L.P., ET AL
CourtCourt of Appeal of Louisiana — District of US

DWAYNE ALEXANDER
v.
BLUE WILLIAMS, L.L.P., ET AL

NO. 2018-CA-0776

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

JANUARY 23, 2019


APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-05452, DIVISION "C"
Honorable Sidney H. Cates, Judge

Judge Rosemary Ledet

(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins)

Donald C. Douglas, Jr.
THE DOUGLAS LAW FIRM, LLC
1070 West Causeway Approach, Suite B
Mandeville, LA 70471

COUNSEL FOR PLAINTIFF/APPELLANT

Thomas G. Buck
Brett W. Tweedel
BLUE WILLIAMS, L.L.P.
3421 North Causeway Boulevard, Suite 900
Metairie, LA 70002

David S. Daly
Elliot M. Lonker
FRILOT, LLC
1100 Poydras Street, Suite 3700
New Orleans, LA 70163

Judy L. Burnthorn
Andrew J. Baer
Matthew T. Biggers
Nancy J. Marshall
Karen P. Holland
DEUTSCH KERRIGAN, LLP
755 Magazine Street
New Orleans, LA 70130

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James M. Garner
Debra J. Fischman
Ryan O. Luminais
Brandon W. Keay
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C
909 Poydras Street, Suite 2800
New Orleans, LA 70112

Jeff Landry
ATTORNEY GENERAL
Deborah A. Villio
Michael L. Fantaci
LEBLANC FANTACI VILLIO, LLC
3421 North Causeway Blvd., Suite 201
Metairie, LA 70002

COUNSEL FOR DEFENDANTS /APPELLEES

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

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This is a defamation suit. The plaintiff, Dwayne Alexander, filed this suit against multiple defendants. In response, the defendants filed various exceptions and motions for summary judgment. Following a hearing, the trial court rendered judgment dismissing the suit. From that judgment, Mr. Alexander appeals. For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2017, Mr. Alexander, a former private investigator, commenced this suit against eleven defendants—five attorneys, three law firms, two individuals, and one state agency. For ease of discussion, the eleven defendants are grouped into the following five categories:

• Blue Williams, LLP; and two attorneys in that firm, Thomas Buck and David Parnell, Jr. (collectively the "Blue Williams Defendants");

• Burglass & Tankersley; and two attorneys in that firm, Dennis J. Phayer and Elizabeth Doubleday (collectively the "Burglass Defendants");

• Deutsch Kerrigan, LLP; and one attorney in that firm, Nancy Marshall1 (collectively the "Deutsch Kerrigan Defendants");

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• James Englade and the Louisiana State Board of Private Investigator Examiners (the "LSBPIE") (collectively the "State Defendants"); and

• Annette Kovac ("Ms. Kovac").

This suit stems from an earlier suit that Mr. Alexander filed in Civil District Court for the Parish of Orleans ("CDC"), entitled Alexander v. Centanni, et al., CDC No. 2015-209 (the "Centanni Case"). In his petition in this suit, Mr. Alexander describes the Centanni Case as "a petition to annul a former judgment because attorneys for the parties (of which four are defendants herein, Dennis Phayer, Elizabeth Doubleday and their employers) had used a false affidavit concocted by James P. Englade without authority or board approval of the . . . LSBPIE."

In the Centanni Case, the Blue Williams Defendants, as attorney for Wayne Centanni; the Burglass Defendants, as attorney for Mr. Englade; and the Deutsch Kerrigan Defendants, as attorney for Mr. Parnell, jointly filed a writ application in this court, seeking review of the trial court's ruling denying their motion for summary judgment. They attached to their joint writ application a copy of the February 27, 2009 Cease and Desist Order that the LSBPIE issued to Mr. Alexander (the "C & D Order").2 This court denied their writ application. Alexander v. Centanni, et al., 17-0162 (La. App. 4 Cir. 3/29/17) (unpub.).

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In this suit, the gist of Mr. Alexander's claim is that the defendants defamed him by attaching to their joint writ application a copy of the C & D Order. Mr. Alexander characterizes the C & D Order as a false, forged, and fabricated public record. Mr. Alexander alleges that the defendants had knowledge of the falsity of the C & D Order from the earlier litigation, that the C & D Order "had absolutely nothing to do with the current litigation on writ," and that attaching the document to the writ application was "nothing more than [a] malicious[] and willful act by all defendants to defame, tarnish petitioner['s] reputation putting him in a false light to the courts." Mr. Alexander further alleges that the C & D Order was "circulated" to the court, the court's employees and staffs, the clerk of court's staff, and counsel of record and that it was "placed in the public records."3 Thus, Mr. Alexander alleges, the defendants participated in a scheme "to defame [his] reputation and ensure [he] is prevented from earning a living in his chosen occupation [as a private investigator]." Finally, Mr. Alexander alleges that the defendants' defamation caused damage to his personal reputation, humiliation, embarrassment, and mental anguish.

In response, the defendants filed various exceptions and motions for summary judgment. Mr. Alexander also filed a cross-motion for partial summary judgment. Following a hearing, the trial court denied Mr. Alexander's cross-motion and ruled on the defendants' exceptions and motions as follows:

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• Exception of No Cause of Action filed by the State Defendants and adopted by the Burglass Defendants is MAINTAINED;

• Motion for Summary Judgment and Exception of Privilege filed by the Blue Williams Defendants and adopted by the Burglass Defendants are GRANTED and MAINTAINED;

• Motion for Summary Judgment filed by the Kovac Defendant is GRANTED; and

• Motion for Summary Judgment filed by the Deutsch Kerrigan Defendants is GRANTED.4

In its written reasons for judgment, the trial court stated as follows:

Louisiana R.S. 14:49 establishes a qualified privilege in defamation actions for any "publication or expression . . . made by an attorney or party in a judicial proceeding."5 In cases involving this qualified privilege, actual malice must be proved, regardless of whether the publication is true or false. Louisiana R.S. 13:3415 further provides that, "no party to any action or proceeding is liable for any slanderous or libelous words uttered by his attorney at law."

The law grants to attorneys and their clients this qualified privilege in defamation actions for (allegedly defamatory) statements made in the pleadings and briefs they file, if those statements are not made with actual malice, and are reasonable and pertinent to the litigation at hand. Further, the Louisiana Fourth Circuit has held in Miskell v. Ciervo, 557 So.2d 274 (La. App. 4[th] Cir. 1990), that, "if the attorneys of a client may not be held liable for defamation, the client which hired them also will not be liable." See also Jacobs v. O'Bannon, 472 So.2d 180 (La. App. 4[th] Cir. 1985) and 531 So.2d 562 (La. App. 4[th] Cir. 1988).

The Court has examined the four corners of plaintiff's Petition for Damages, and finds that it fails to state any facts showing specific and/or actual malice or an intent to harm on the part of any of the defendants, and in support of plaintiff's conclusory allegations of actual malice. Likewise, as to plaintiff's alleged damages, plaintiff has failed to state any facts and has made nothing more than conclusory allegations that he suffered damage to reputation, humiliation, embarrassment, and mental anguish.

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The court finds that plaintiff has failed to state a cause of action for defamation against the defendant attorneys and their clients, alleged to have occurred in the course of a judicial proceeding.6

The Court further finds that amendment of the pleadings will not cure the defects in the Petition. Plaintiff complains that defendants, with malice, defamed him by publication of the 2009 Cease and Desist Order; yet, the record of this matter shows that the plaintiff himself was the first to publish the 2009 Cease and Desist Order by attaching it to his original "Petition to Annul Judgment for Fraud and Ill Practice Pursuant to C.C.P. Art. 2004," in the same CDC No. 2015-209, and prior to any complained of publication by defendants in this action.

Further, after review of the entire record, the memoranda, and the exhibits, the Court finds that there are no genuine issues of material fact and, pursuant to the law, defendants are entitled to summary judgment of dismissal.

For those reasons, the trial court dismissed Mr. Alexander's claims against all of the defendants with prejudice.

Mr. Alexander contemporaneously filed a Motion for New Trial and a Motion to Recuse the trial judge. The matter was referred to another CDC section for a ruling on the Motion to Recuse. The judge in the other section denied the Motion to Recuse and transferred the matter back to the trial judge. The trial judge denied the Motion for New Trial. This appeal followed.

DISCUSSION

Although Mr. Alexander assigns multiple errors,7 we frame the dispositive issues on appeal as three-fold: (i) whether the heightened pleading standard,

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enunciated in Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, for a non-client to sue an attorney (and his or her clients or both) for defamation was met (the "Montalvo heightened-pleading standard"); (ii) whether the defendants properly served Mr. Alexander with their motions for summary judgment; and (iii) whether the qualified privilege granted to an attorney or a party in a judicial proceeding applies. For ease of discussion, we address each issue in turn.

No Cause of Action—Application of the Montalvo Heightened-Pleading Standard

A de novo standard of review applies to this court's review of a trial court's judgment maintaining a peremptory exception of no cause of action, which presents a legal question. See Zeigler v. Housing Auth. of New Orleans, 12-1168, p. 6 (La. App. 4 Cir. 4/24/13), 118 So.3d 442, 449 (citing St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12-545, p. 7 (La. App. 4 Cir...

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