Alexander v. Centanni
|27 January 2021
|DWAYNE ALEXANDER v. WAYNE R. CENTANNI, INDIVIDUALLY AND D/B/A CENTANNI INVESTIGATIVE AGENCIES, AND DAVID PARNELL, JR.
|Court of Appeal of Louisiana — District of US
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-00209, DIVISION "N-8"
Honorable Ethel Simms Julien, Judge
Judge Daniel L. Dysart
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano)
Robert G. Harvey, Sr.
LAW OFFICE OF ROBERT G. HARVEY, SR., APLC
600 N. Carrollton Avenue
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT
Thomas G. Buck
Brett W. Tweedel
BLUE WILLIAMS, L.L.C.
3421 N. Causeway Blvd., Suite 900
Metairie, LA 70002-3760
Michael Don Peytavin
Andrew C. Blasini
GAUDRY RANSON HIGGINS & GREMILLION, L.L.C.
401 Whitney Avenue, Suite 500
Gretna, LA 70056
Dennis J. Phayer
BURGLASS & TANKERSLEY, L.L.C.
5213 Airline Drive
Metairie, LA 70001-5602
COUNSEL FOR DEFENDANT/APPELLEE
This appeal concerns trial court judgments granting peremptory exceptions of prescription and dismissing the claims of plaintiff, Dwayne Alexander, against the defendants, Wayne R. Centanni, Centanni Investigative Agency, Inc., David Parnell and James Englade (collectively referred to herein as "defendants"). For the reasons that follow, we affirm the trial court's judgment.
FACTS AND PROCEDURAL HISTORY
This matter is the latest in a number of lawsuits and appeals filed by Mr. Alexander, a private investigator, arising from or connected to his claims that defendant, Wayne Centanni, individually and d/b/a Centanni Investigative Agency, engaged in conduct the intended purpose of which was to drive him out of business.1
By way of background, Mr. Alexander held a license to work as a private investigator from 1996 to November 14, 2006, when Mr. Alexander's license
expired.2 After that date, Mr. Alexander was engaged in the investigation of worker's compensation claims for the City of New Orleans, through its third party claims administrator, Cannon Cochran Management Services, Inc. ("CCMSI"), work he had begun performing in 2000, while his license was still valid.3
Prior to the expiration of his license, Mr. Alexander received notice from the Louisiana State Board of Private Investigator Examiners (the "Board") that two complaints of professional misconduct had been made against him, which the Board was investigating.4 The Board also notified Mr. Alexander that he "'may have violated state criminal law during one of those investigations' and that the matter would be turned over to the State Police for investigation."5
In February, 2009, Mr. Centanni sent the Board a complaint against Mr. Alexander, in which he alleged that Mr. Alexander was performing the work of a private investigator without a license and requesting an investigation.6 The complaint included a large binder of documents containing personal and professional information Mr. Centanni had compiled from various sources, including documents received from the Board pursuant to a public records request.7 The binder contained information regarding Mr. Alexander's license and his expunged criminal convictions.8
Mr. Centanni also sent the complaint and the binder to various others, including the CCMSI, the Metropolitan Crime Commission ("MCC"), and a
television reporter.9 In February, 2009, the CCMSI terminated its contract with Mr. Alexander and the Board sent Mr. Alexander a cease and desist letter, ordering that he cease and desist the practice of private investigation.10
In 2011, while Mr. Alexander was working for the St. Charles Parish School Board investigating a worker's compensation matter, an anonymous tip was made to the MCC reporting that Mr. Alexander was working as a private investigator without a license.11 The MCC then reported this information, along with information regarding Mr. Alexander's criminal background, to the Superintendent of the School Board.12 A cease and desist order was issued to Mr. Alexander and the Superintendent contacted the St. Charles Parish Sheriff's Office ("SCPSO") requesting that it look into whether, in fact, Mr. Alexander was working as a private investigator without a license.13 The SCPSO then contacted the Board for information about Mr. Alexander and the relevant statutes on the subject; Mr. Englade responded by advising that the Board had issued a cease and desist letter to Mr. Alexander in 2009, which was still in effect.14
Based on the information provided by the Board, in June, 2011, the SCPSO issued a warrant for Mr. Alexander's arrest for violating La. R.S. 37:3520, the statute that criminalizes the provision of private investigative services without a license.15 Mr. Alexander learned of the arrest warrant and turned himself in to the
police.16 Mr. Alexander's arrest was published in the Times-Picayune newspaper the following day.17
Over the years, Mr. Alexander filed several lawsuits, including a 2009 suit against Mr. Centanni and Centanni Investigative Services in which he alleged unfair trade practices claims. During the course of that lawsuit, the defendants filed a special motion to strike pursuant to La. C.C.P. art. 971,18 which was granted by the trial court.19 While Mr. Alexander appealed an award of attorney's fees and costs under Article 971, he did not appeal the judgment granting the special motion to strike.20 These events led to the lawsuit at issue in Alexander I, a lawsuit that ended in a favorable jury award to Mr. Alexander.
On January 9, 2015, Mr. Alexander filed the instant action against Mr. Centanni, his agency, and David Parnell, an attorney who represented them in connection with the 2009 lawsuit. In his Petition to Annul Judgment for Fraud and Ill Practice Pursuant to C.C.P. art. 2004 ("nullity petition"), Mr. Alexander sought to have the judgment granting the motion to strike in Alexander II annulled on the basis that "it was based on perjured testimony and constitutes fraud and ill practice under C.C.P. art. 2004." He further alleged that the judgment prevented him from "participating in a fair and impartial proceeding and denying him the opportunity
to appear and assert his claim as provided for by the Louisiana Constitution, Article 1, Section 22." More specifically, Mr. Alexander alleged that Mr. Parnell, acting in concert with James P. Englade, the Board's executive director, "create[d], fabricate[d] and present[ed] perjured, testimony, false documents, and misrepresented facts to the Court by way of affidavit, exhibits and memorandum, related to material issues involving" Mr. Alexander's 2009 suit. The alleged falsity pertained to an affidavit executed by Mr. Englade that was used by the defendants in Alexander II in support of their special motion to strike, in addition to testimony given by Mr. Englade in a deposition and in the 2014 trial in Alexander I.
Asserting the doctrine of contra non valentem, Mr. Alexander alleged that he first had knowledge of the alleged "perjured testimony and evidence of fabrication of documents" some time between January 9, 2014 and December 16, 2014, which is within a year before the filing of this action.
Mr. Alexander amended his Petition on July 23, 2015, adding Mr. Englade as a defendant.
In response to the nullity petition, Mr. Centanni filed a peremptory exception of prescription on July 8, 2019. Mr. Englade joined in Mr. Centanni's exception on July 11, 2019. Centanni Investigative Agency filed its own exception of prescription on October 21, 2019. Mr. Centanni's and Mr. Englade's exceptions were heard by the trial court on October 4, 2019. By judgment dated November 4, 2019, the trial court granted the exception, dismissing the claims against Mr. Centanni, Mr. Parnell and Mr. Englade.21 A separate judgment granting the
exception as to Centanni Investigative Agency was rendered on December 16, 2019.
Mr. Alexander filed motions for new trial on November 12, 2019 as to the November 4, 2019 judgment and on December 27, 2019 as to the December 16, 2019 judgment. The motions were heard together and denied by the trial court by judgment dated February 14, 2020. Mr. Alexander filed an appeal of the February 14, 2020 judgment on February 28, 2020.
At the outset, and as noted by defendants, the appeal of this matter is of the February 14, 2020 judgment denying Mr. Alexander's motions for new trial rather than the judgments granting the exceptions of prescription. Generally, a judgment denying a motion for new trial is an interlocutory, non-appealable judgment. Barham, Warner & Bellamy, L.L.C. v. Strategic All. Partners, L.L.C., 09-1528, p. 4 (La. App. 4 Cir. 5/26/10), 40 So.3d 1149, 1151. In his appellate brief, however, Mr. Alexander does not address the issue of the trial court's denial of his motion for new trial. His sole assignment of error pertains to the grant of the exceptions of prescription.
Our jurisprudence reflects that "courts have consistently considered an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when, as here, it is clear from the appellant's brief that the intent is to appeal the merits of the case." Wiles v. Wiles, 15-1302, p. 3 (La. App. 4 Cir.
5/18/16), 193 So.3d 397, 398. See also Edgefield v. Audubon Nature Inst., Inc., 18-1782, p. 1 (La. 1/18/19), 261 So.3d 776; Clotworthy v. Scaglione, 11-1733, p. 3 (La. App. 4 Cir. 5/23/12), 95 So.3d 518, 520. Accordingly, while Mr. Alexander did not expressly appeal the judgments granting the exceptions of prescription, it is clear that his intent was to appeal these judgments and we focus exclusively on this issue rather than the denial of Mr. Alexander's motion for new trial.22
Mr. Alexander's nullity action was brought pursuant to La. C.C.P. art. 2004, which, under subpart A, provides that "[a] final judgment obtained by fraud or ill practices may be annulled." A suit to annul a judgment based on fraud or ill practices must be brought "within...
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