Hebert v. La. Licensed Rehab. Counselors, 07-610.

• Decision Date: 04 March 2009
• Docket Number: No. 07-610.,07-610.
• Citation: 4 So.3d 1002
• Parties: Glenn M. HEBERT v. LOUISIANA LICENSED PROFESSIONAL VOCATIONAL REHABILITATION COUNSELORS and Sy Arceneaux.
• Court: Court of Appeal of Louisiana — District of US

4 So.3d 1002

Glenn M. HEBERT v. LOUISIANA LICENSED PROFESSIONAL VOCATIONAL REHABILITATION COUNSELORS and Sy Arceneaux.

No. 07-610.

Court of Appeal of Louisiana, Third Circuit.

March 4, 2009.

R. Scott Iles, Lafayette, Louisiana, for Plaintiff/Appellant, Glenn M. Hebert.

David A. Hurlburt, Hurlburt, Privat & Monrose, Lafayette, Louisiana, for Defendant/Appellee, Sy Arceneaux.

Stephen W. Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, Louisiana, for Defendants/Appellees, Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners.

Court composed of Chief Judge ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS, BILLY H. EZELL, Judges.

COOKS, Judge.

OPINION ON REMAND

In this case, Defendant, Sy Arceneaux, was hired to provide vocational rehabilitation services to an injured employee. The employee then hired Plaintiff, Glenn Hebert, to assess Mr. Arceneaux's work, which work Hebert found to be below acceptable standards. Mr. Hebert dubbed Mr. Arceneaux's work "sham rehabilitation" as that term was used by this Court in Maxie v. Brown Industries, 95-19 (La. App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La.10/6/95), 661 So.2d 469, to indicate putting the financial interests of the employer ahead of the employee's best interest.

Mr. Arceneaux filed a complaint against Mr. Hebert with the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners (hereafter Board). Following a hearing on the matter, the Board found Mr. Hebert violated § 1604, Canon 4(A)(7) of the Code of Professional Ethics for Licensed Rehabilitation Counselors and issued an official reprimand to Mr. Hebert. The Board also required that he complete a pre-approved course of study in ethics.

Mr. Hebert then filed suit for mandamus and damages against Mr. Arceneaux and the Board, alleging they "conspired through an abuse of process to obtain ethical action by way of an ethical complaint." His petition sought damages for libel and dismissal of the ethical complaint. The Board filed an exception of improper venue, among other exceptions, and Mr. Arceneaux filed a motion to strike under La.Code Civ.P. art. 971.

The district court granted the motion to strike, specifically noting that it "can't see how [Mr. Hebert] would have any probability of success." The district court also awarded Mr. Arceneaux $5,000.00 in attorney fees as mandated by La.Code Civ.P. art. 971.

The Board's exceptions were set for hearing, but prior to the hearing, Mr. Hebert and the Board reached an agreement on the exception of venue. The district court signed a consent judgment dismissing without prejudice Mr. Hebert's petition against the Board on the basis of improper venue.

On appeal, this court determined Mr. Hebert articulated, albeit inartfully, sufficient facts to allege the Board and Mr. Arceneaux acted in concert to infringe on his constitutional right to freely communicate with his client without reprisal or public reprimand. See Hebert v. Louisiana Licensed Prof. Vocational Rehab. Counselors, 07-610 (La.App. 3 Cir. 1/3/08), 974 So.2d 824. We were satisfied that, in addition to abuse of process, Mr. Hebert's petition contained facts sufficient to show he may be successful in asserting a claim against Mr. Arceneaux and the Board for violating his First Amendment right, and thus, La.Code Civ.P. art. 971 was inapplicable because it does not demand dismissal of complaints seeking redress for constitutional violations. We remanded the matter to allow Hebert to amend his pleading to particularize the claims and facts demonstrating a constitutional deprivation under color of state law. Further, because we found dismissal of Arceneaux under La.Code Civ.P. art. 971 was improper, we concluded venue in Lafayette Parish would be proper as to the Board and, therefore, reversed the consent judgment dismissing the Board.

The Board and Mr. Arceneaux filed writs to the Louisiana Supreme Court. It appears that initially the Supreme Court released two decisions in this case. On May 9, 2008, in the Court's "News Release # 032", a per curiam opinion was issued addressing the writ applications filed by both Arceneaux and the Board. It granted both writs and reversed our opinion, reinstating and affirming the judgment of the trial court. However, on May 12, 2008, the per curiam opinion was replaced with a different order, reversing our judgment, but remanding the matter to the court of appeal "to address the applicability of La.Code Civ.P. art. 971 based on the showing made, i.e., plaintiff's petition as presently drafted." That order was silent as to the Board's consent judgment.¹ This order was the only direct mail transmission to the parties, and we accept it as the official ruling of the Supreme Court in this case. That order, in its entirety, stated:

Writs Granted. The judgment of the court of appeal is vacated. The appellate court's discussion of the constitutionality of § 1604, Canon 4(A)(7) of the Code of Professional Ethics for Licensed Rehabilitation Counselors is not appropriate as that issue was not raised by the parties. See Vallo v. Gayle Oil Company, Inc., 94-1238 (La.11/30/94), 646 So.2d 859, 864 (stating the longstanding jurisprudential rule of law in Louisiana that litigants must raise constitutional attacks in the district court, not the appellate courts, and the constitutional challenge must be specially pleaded and the grounds for the claim particularized). Accordingly, this matter is remanded to the court of appeal to address the applicability of La.Code Civ. Proc. art. 971 based on the showing made, i.e., plaintiff's petition as presently drafted.

ANALYSIS

Accepting the Supreme Court's instructions as binding on this Court, we have carefully examined plaintiff's petition as presently drafted and the defense to it affirmatively asserted by the defendants. Louisiana Code of Civil Procedure article 971 also instructs in making our determination, we "shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." Defendant, Mr. Arceneaux, in addition to answering the petition, filed an affidavit setting forth his version of the facts.

Plaintiff's petition seeking tort recovery is premised on two separate causes of action: (1) defamation and (2) abuse of process. The petition recites that defendant Mr. Arceneaux's libelous conduct consisted of filing a complaint with the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners alleging that "Mr. Hebert in complying with the letter of the law issued by the Third Circuit Court of Appeal amounts to an ethical infraction." The petition further states, in addition to engaging in a conspiracy with Mr. Arceneaux, the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners conduct was "libelist [sic] in its promulgated decision reprimanding Mr. Hebert for the cautious and meticulous compliance with the law of the Third Circuit Court of Appeal."

The petition also recites that the defendants' conduct constituted an abuse of process in the following particulars:

1.

The above named defendants conspired through an abuse of process to obtain ethical action by way of an ethical complaint designated Complaint Number 02-2004 against your petitioner in derogation of the law of the Third Circuit Court of Appeal as it applies to vocational rehabilitation work in cases involving injured workers who may have been injured in the course and scope of employment and thereby entitled to vocational rehabilitation benefits through the Louisiana Worker's Compensation Act.

10.

In the Louisiana Third Circuit Court of Appeal decision of Maxie v. Brown Industries, 657 So.2d 443 (La.App. 3 Cir.1995), writ denied, Chief Judge Thibodeaux authored an opinion which extensively set out the obligation of a vocational rehabilitation counselor to the injured worker and not to the insurance company who hired him. In that decision, Chief Judge Thibodeaux wrote:

"This so-called `client-counselor' relationship is a subterfuge whose apparent purpose is to advance the interests of the entity which is paying for the services. It is no more than a cruel diversion from the reality of the goals it ought to advance. Regrettably, the use of vocational rehabilitation `experts' has become a forensic tool on behalf of employers who use it to betray the salutary principles and obfuscate the ameliorative objectives of our workers' compensation laws."

11.

Vocational Rehabilitation Counselor Sy Arceneaux is well familiar with the decisions of the Third Circuit Court of Appeal as the decisions have been published to him by Crowley Attorney Mike Miller who has demanded that Sy Arceneaux sign an agreement whereby he will abide by the dictates of the Louisiana Third Circuit Court of Appeal by putting the interests of the injured worker ahead of the financial interests of the worker's compensation insurance companies.

12.

Despite direct knowledge of these decisions, Sy Arceneaux's complaint with the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners constitutes a tort of "abuse of process" in that he used a legal process to seek tortious sanctions against your petitioner because your petitioner correctly stated the law of the Louisiana Third Circuit Court of Appeal to the injured worker.

15.

Furthermore, the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners has acted in collusion and conspired with Sy Arceneaux to discipline Mr. Hebert for repeating the word of the law of the Louisiana Third Circuit Court of Appeal. Instead of the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners commanding that its counselors put the injured workers' best interest always ahead of the financial interest of the insurance companies and businesses that pay the counselors, the ...