Dr. Mace Scott & S. Emergency Med., LLC v. Zaheri

• Decision Date: 03 December 2014
• Docket Number: No. 2014–CA–0726.,2014–CA–0726.
• Citation: 157 So.3d 779
• Parties: Dr. Mace SCOTT & Southern Emergency Medicine, LLC v. Kamran ZAHERI.
• Court: Court of Appeal of Louisiana — District of US

157 So.3d 779

Dr. Mace SCOTT & Southern Emergency Medicine, LLC
v.
Kamran ZAHERI.

No. 2014–CA–0726.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 3, 2014

Affirmed in part, amended in part, reversed in part, and remanded.

[157 So.3d 782]

Julie Quinn, Natalie K. Maples, Quinn Law, APLC, New Orleans, LA, for Plaintiff/Appellant.

Paul A. Tabary, III, Elizabeth R. Borne, Lacey Tabary, Tabary and Borne, LLC, Chalmette, LA, for Defendant/Appellee.

(Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU). PAUL A. BONIN, Judge.

Mace Scott, an emergency room physician, sued Kamran Zaheri, another emergency room physician, because Dr. Scott came to believe that Dr. Zaheri published four anonymous defamatory letters about him over a three year period. The first three of the four letters were published more than one year before Dr. Scott filed his suit on February 14, 2013. Dr. Zaheri filed an exception of prescription regarding the first three letters and exceptions of no cause and of no right of action regarding the fourth letter.

Rejecting Dr. Scott's contention that the four letters constituted a continuous tort, the trial judge concluded that the publication of each of the four letters gave rise to discrete causes of action and thus the causes of action arising out of the three letters published more than one year before the filing of the lawsuit were prescribed by the expiration of more than one year due to the inaction of Dr. Scott. With respect to the fourth publication, while finding that Dr. Scott had stated a cause of action for defamation and intentional infliction of mental distress, the trial judge nonetheless sustained the exception of no cause of action in part to dismiss Dr. Scott's claims for intentional and/or negligent interference with a contract, negligent infliction of emotional distress, and fraud. Dr. Scott now seeks our review of the trial judge's rulings.

We agree with the trial judge that the publication of the four letters does not constitute a continuing tort and that the causes of action arising from the publications of the first three anonymous letters are prescribed on the face of the petition.¹ And thus the trial judge correctly sustained the exception of prescription. But because Dr. Scott argued to the trial judge that the softening doctrine of contra non valentem applies, we conclude that the trial judge was required to afford Dr. Scott time within which to amend his petition in order to plead facts to support the application of contra non valentem and thereby prove that the one-year prescriptive period was tolled until the discovery by Dr. Scott of the identity of the anonymous letter-writer. We therefore amend the judgment insofar as it sustained the exception of prescription in order to allow time for Dr. Scott to amend his petition. And we affirm that part of the judgment as amended and remand with instructions.

We disagree, however, with the trial judge's ruling granting a partial exception of no cause of action because our law has long disfavored the granting of partial exceptions of no cause of action.² See

[157 So.3d 783]

Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234, 1239 (La.1993). We thus reverse that part of the trial court's judgment.

We turn now to explain our decision in detail.

I

We begin with a brief description of this matter's factual and procedural history.

Between September 2010 and May 2011, Dr. Scott, a physician working at Touro Infirmary's emergency room, was the subject of three defamatory letters addressed to Touro by an anonymous writer. The letters accused Dr. Scott of various acts of medical malpractice, professional malfeasance, personal negligence, sexual misconduct, and criminal behavior.³ Although Touro's internal investigation into the letters' allegations exonerated Dr. Scott, he resigned from Touro in January 2012. In February 2012, Southern Emergency Medicine, LLC, whose sole member is Dr. Scott, was awarded the emergency room operation contract from St. Bernard Parish Hospital. Dr. Scott began working at St. Bernard's emergency room shortly thereafter. In October 2012, the hospital, in addition to several other individuals in St. Bernard Parish, received a fourth anonymous letter which contained additional defamatory comments and attached the prior three defamatory letters which had been addressed to Touro. Dr. Scott alleges that he acquired sufficient information after the fourth letter's receipt to indicate that Dr. Zaheri, a former coworker at Touro's emergency room, was the letters' anonymous author. Dr. Scott and Southern Emergency Medicine subsequently filed suit on February 14, 2013, against Dr. Zaheri requesting damages for defamation, fraud, intentional and/or negligent infliction of emotional distress, and intentional and/or negligent interference with a contract.⁴

Dr. Zaheri responded to the suit by filing an answer, as well as exceptions of prescription, no cause of action, and no right of action on June 3, 2013. Dr. Zaheri's exception of prescription argued that Dr. Scott's claims for defamation with respect to the anonymous letters addressed to Touro were prescribed because defamation is a tort subject to a one-year prescriptive period and the letters' publications to Touro in 2010 and 2011 occurred more than one year before the February 14, 2013 filing of Dr. Scott's petition for damages. Dr. Zaheri's exception of no right of action asked the trial court to dismiss Dr. Scott's claims for intentional and/or negligent interference with a contract with Touro because neither Southern Emergency nor Dr. Scott had a contract with Touro. Lastly, Dr. Zaheri's exception of no cause of action asserted that the Dr. Scott's claims for fraud, intentional and/or negligent interference with a contract, and intentional and/or negligent infliction of emotion distress should be dismissed because

[157 So.3d 784]

the petition fails to properly plead these causes of action.

Dr. Scott filed an opposition memorandum and the parties argued the merits of Dr. Zaheri's exceptions before the trial judge on August 23, 2013. The trial judge took the matter under advisement, and subsequently issued a written judgment, and reasons for judgment, on March 7, 2014.

Specifically, the trial judge sustained Dr. Zaheri's exception of prescription and dismissed with prejudice “all delictual claims arising from the letters allegedly sent by Dr. Zaheri to individuals and groups affiliated with Touro Infirmary in or around September 2010, February 2011, and May 2011.” ⁵ Further, the trial judge sustained Dr. Zaheri's exception of no right of action with respect to Dr. Scott's claims for fraud, negligent infliction of emotional distress, and intentional and/or negligent interference with the Touro contract. Conversely, the trial judge overruled Dr. Zaheri's exception of no cause of action with respect to Dr. Scott's claim for intentional infliction of emotional distress, and overruled as moot Dr. Zaheri's exception of no right of action.

The trial judge certified the judgment as final and appealable on May 9, 2014, in response to a motion filed by Dr. Scott who subsequently sought timely appellate review. See La. C.C.P. art. 1915 B. On appeal, Dr. Scott challenges the trial judge's granting of Dr. Zaheri's exceptions of prescription and partial no cause of action. Dr. Scott, specifically, argues that the exception of prescription was improperly sustained because the continuing tort doctrine applies to the facts of this case and serves to prevent the running of prescription. Dr. Scott also argues that the doctrine of contra non valentem applies to the facts of his case and that this Court should remand this matter to the trial court so that he can amend his petition to plead this doctrine. Lastly, Dr. Scott argues that the judgment sustaining Dr. Zaheri's partial exception of no cause of action should be reversed on the grounds that Louisiana law has long disfavored the granting of partial exceptions of no cause of action. See Everything on Wheels Subaru, supra.

II

We summarize now the well-established decisional rules applicable to exceptions of prescription and of no cause of action.

A

“Prescription must be pleaded. Courts may not supply a plea of prescription.” La. Civil Code art. 3452. See also La. C.C.P. art. 927 B (“The court may not supply the objection of prescription, which shall be specially pleaded.”). Prescription is an objection raised by peremptory exception. See La. C.C.P. art. 927 A(1). Like other peremptory exceptions, a defendant may raise the exception of prescription in the trial court at any time prior to the matter's submission after trial. La. C.C.P. arts. 927 and 928(B). La. C.C.P. art. 929 provides that when a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case.

Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory

[157 So.3d 785]

exception. See Spott v. Otis Elevator Co., 601 So.2d 1355, 1361 (La.1992). If prescription is evident on the face of the pleadings, however, the burden shifts to the plaintiff to show that the action has not prescribed. See Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1386 (La.1993).

The trial court is not bound to accept as true the allegations of a plaintiff's petition in its trial of the peremptory exception. See Bowers v. Orleans Parish School Bd., 95–2530 (La.App. 4 Cir. 5/29/96); 694 So.2d 967, 972. Evidence may be introduced at the trial of all peremptory exceptions, except the objection of no cause of action. See La. C.C.P. art. 931.

A judgment granting a peremptory exception is generally reviewed de novo, because the exception raises a legal question. See Metairie III v. Poche' Const., Inc., 10–0353, p. 3 (La.App. 4 Cir. 9/29/10); 49 So.3d 446, 449. When evidence is introduced and evaluated at the trial of a peremptory...