Opinion
2011 CA 1990
10-25-2012
IRVIN L. MAGRl, JR. v. WAFB, L.L.C., PAUL GATES, GARY A. HYATT, AND XYZ INSURANCE COMPANY
Anthony L. Glorioso Metairie, Louisiana Attorney for Plaintiff/Appellant Irvin L. Magri, Jr. E. Wade Shows Carrie LeBlanc Jones Baton Rouge, Louisiana Attorneys for Defendant/Appellee Louisiana State Board of Private Investigator Examiners James D. "Buddy" Caldwell Attorney General and W. L. West Baton Rouge, Louisiana Attorneys for Defendant/Appellee Joseph A. Oster
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
DOCKET NUMBER C527868
THE HONORABLE WILLIAM A. MORVANT, JUDGE
Anthony L. Glorioso
Metairie, Louisiana
Attorney for Plaintiff/Appellant
Irvin L. Magri, Jr.
E. Wade Shows
Carrie LeBlanc Jones
Baton Rouge, Louisiana
Attorneys for Defendant/Appellee
Louisiana State Board of Private
Investigator Examiners
James D. "Buddy" Caldwell
Attorney General
and
W. L. West
Baton Rouge, Louisiana
Attorneys for Defendant/Appellee
Joseph A. Oster
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
McDONALD , J.
This is one of two related cases handed down on this day. The other case is Magri v. WAFB, L.L.C., 2011-1991 (La. App. 1 Cir. 10/25/12) (unpublished).
On December 30, 2004, the plaintiff, Irvin L. Magri, Jr., filed suit for damages against WAFB, L.L.C. (WAFB), operating as Channel 9 in Baton Rouge, Paul Gates, a reporter for WAFB, Gary A. Hyatt, the former chairman of the Louisiana Board of Private Investigators (the Board), and XYZ Insurance Company, the alleged insurer for WAFB. Mr. Magri asserted that on December 31, 2003, he was the chairman of the Louisiana Board of Pardons and that on said date, Mr. Gates' broadcasts on WAFB at 6:00 p.m. and 10:00 p.m. stated that Mr. Magri had hired unlicensed private investigators in 1993. Mr. Magri alleged that the broadcasts caused him expenses, lost wages, and emotional distress. Mr. Magri asserted that he was intentionally defamed, dishonored, discredited, and held up to undeserved public ridicule based upon the broadcasts by Mr. Gates on WAFB.
Mr. Magri asserted that WAFB and Mr. Gates failed to properly investigate the facts and take reasonable care; that Mr. Gates caused intentional and deliberate harm; and that WAFB failed to appropriately screen, supervise and train its employees. He asserted that the incident was also caused by the negligence of Mr. Hyatt, who "falsely denied the facts" of the matter during the broadcast.
On January 6, 2009, Mr. Magri filed a First Supplemental and Amending Petition for Damages (hereafter the first First Supplemental and Amending Petition), adding as defendant the Board and asserting that the Board, through its members, its former Executive Director, Mr. Hyatt, and through its other employees, conspired to cause damage to Mr. Magri by losing his application to add the names of additional investigators to his private investigative agency. Mr. Magri asserted that through the actions or inactions of Mr. Hyatt or other employees, the Board intentionally caused Mr. Magri to face disciplinary charges and prosecution, resulting in his payment of a fine, among other assertions. The district court judge signed the order to allow the first First Supplemental and Amending Petition be filed, however, no service was requested.
There were two supplemental and amending petitions filed, each captioned as a First Supplemental and Amending Petition.
WAFB and Mr. Gates filed a motion to strike the Petition and the first First Supplemental and Amending Petition and a peremptory exception raising the objection of no cause of action. Mr. Magri filed a motion to strike the motion to strike the Petition and first First Supplemental and Amending Petition.
This motion and peremptory exception are not found in the record.
This motion is not found in the record.
After a hearing, the district court denied Mr. Magri's motion to strike the motion to strike filed by WAFB and Mr. Gates, granted the motion to strike filed by WAFB and Mr. Gates, dismissed with prejudice Mr. Magri's Petition and first First Supplemental and Amending Petition without leave to amend as to WAFB and Mr. Gates, and cast Mr. Magri with all costs incurred by WAFB and Mr. Gates. Further, the district court ordered that WAFB and Mr. Gates were entitled to attorney fees, and if no agreement was reached by the parties as to the amount, WAFB and Mr. Gates could submit a motion to set reasonable attorney fees; and ruled that the granting of the motion to strike precluded the need to rule on the peremptory exception of no cause of action filed by WAFB and Mr. Gates. By consent judgment signed December 2, 2009, Mr. Magri paid WAFB and Mr. Gates $25,000.00 for attorney fees and costs.
On January 24, 2011, Mr. Magri filed a First Supplemental and Amending Petition (hereafter the second First Supplemental and Amending Petition) seeking to amend the petition to remove WAFB and Mr. Gates as defendants, asserting that Mr. Hyatt was now deceased and his succession representative was unknown, and adding as defendants Joseph A. Oster, individually and as an officer of the Board, and the Board. This petition was served upon the parties but was not filed with leave of court.
On March 21, 2011, the Board filed a declinatory exception raising the objection of insufficiency of service of process and peremptory exceptions raising the objections of prescription and res judicata. The Board asserted that Mr. Magri filed his first First Supplemental and Amending Petition on January 6, 2009; however, the Board was never served with Mr. Magri's first First Supplemental and Amending Petition for Damages, and the Board requested that the first First Supplemental and Amending Petition be dismissed for insufficiency of service of process for failure to timely request service of citation. The Board asserted that the allegations in both the first and second First Supplemental and Amending Petitions named new defendants and new causes of action that did not relate back to the original petition; thus, Mr. Magri's claims in both the first and second First Supplemental and Amending Petitions were prescribed and should be dismissed pursuant to La. C.C.P. art. 927(A)(1).
Further, the Board asserted that the claims were res judicata, pursuant to a consent agreement signed on March 17, 1995, in which Mr. Magri agreed to plead nolo contendre to the charge of employing unlicensed investigators and pay a $3,000.00 fine to the Board, releasing the Board and its employees from any further claims he might have against them. In exchange, the Board agreed to take no further disciplinary action against Mr. Magri in the matter. Thus, the Board asserted res judicata applied as there was a settlement of the matter in accordance with La. C.C. art. 3071.
On March 30, 2011, Mr. Oster filed: a dilatory exception raising the objection of vagueness to the second First Supplemental and Amended Petition; a peremptory exception raising the objection of prescription, asserting that the claims against him arose from an occurrence different from the news broadcast and did not relate back to the filing date of the Petition and were prescribed; a peremptory exception raising the objection of res judicata, asserting the claims asserted against him in the second First Supplemental and Amending Petition arose from the same disciplinary action dealt with in the settlement agreement; and a peremptory exception raising the objection of no cause of action as to the individual claims against him.
On April 20, 2011, Mr. Magri filed a Second Supplemental and Amending Petition with leave of court from a judge in a different division (Judge Janice Clark in Division "D") which alleged additional facts regarding the actions of Mr. Oster, Mr. Hyatt, and the Board.
After a hearing on May 23, 2011, the district court ruled, sustaining the Board's insufficiency of service of process exception and dismissing Mr. Magri's claims against the Board without prejudice. The Board's prescription and res judicata exceptions were pretermitted. This judgment was signed on June 13, 2011.
Also at the May 23, 2011 hearing, the district court heard the vagueness exception and the res judicata and no cause of action exceptions filed by Mr. Oster and ruled in favor of Mr. Oster, sustaining his no cause of action exception and dismissing all claims against Mr. Oster in his personal capacity with prejudice; sustaining Mr. Oster's vagueness exception, and granting Mr. Magri 15 days to amend the petition's allegations against Mr. Oster under penalty of dismissal of all claims against Mr. Oster for failure to do so; and ordering that the prescription and res judicata exceptions were pretermitted pending amendment of the petitions by Mr. Magri. This judgment was also signed on June 13, 2011.
On June 2, 2011 (notably after the May 23 hearing wherein judgments were rendered but before the judgments were signed on June 13, 2011), Mr. Magri filed a rule to show cause why his second First Supplemental and Amending Petition should not be filed. At a hearing on August 1, 2011, the district court heard Mr. Magri's motion for his second First Supplemental and Amending Petition to be filed. The district court denied the motion.
Mr. Magri filed an appeal on August 11, 2011, stating that he was appealing the judgment signed on June 13, 2011 (which sustained the exception raising the objection of insufficiency of service of process and dismissed his claims against the Board), and also appealing the judgment, which had not yet been signed, arising out of the hearing held on August 1, 2011 (wherein the trial court denied Mr. Magri's request that an order be signed allowing the filing of the second First Supplemental and Amending Petition that was filed on January 24, 2011). On August 17, 2011, the district court signed the judgment denying Mr. Magri's request for leave of court to file the second First Supplemental and Amending Petition, which was filed on January 24, 2011.
In his assignment of error, Mr. Magri states:
Since [the Board] was properly served with the original Petition and the second FIRST SUPPLEMENTAL AND AMENDING PETITION ... it was improper for the trial court to grant the Declinatory Exception of Insufficiency of Service of Process. Magri argues that he requested citation and service of process of the original Petition and the second FIRST SUPPLEMENTAL AND AMENDING PETITION that was filed of record on January 24, 2011, Magri cannot now request that that pleading be served on [the Board], because the judge has refused to sign an order allowing it to be filed.
MR. OSTER IN HIS PERSONAL CAPACITY
At the hearing on May 23, 2011, Mr. Magri stipulated that he did not oppose the dismissal of Mr. Oster in his individual capacity from the suit, and the trial court judgment dated June 13, 2011 reflects that a no cause of action exception against Mr. Oster in his personal capacity, based upon stipulation of counsel, was sustained. Mr. Magri failed to amend within fifteen days his petition as to the other claims against Mr. Oster, but these claims were not dismissed. On appeal, the parties have filed a joint motion asking that this court enter a judgment dismissing the remaining claims against Mr. Oster. Thus, we render judgment to dismiss all Mr. Magri's claims against Mr. Oster.
We note that in the related case, Magri v. WAFB, L.L.C., 2011-1991 (La. App. 1 Cir. 10/25/12) (unpublished), a show cause order was issued by this court for the parties to show why Mr. Oster in his individual capacity should not be dismissed from the suit. Thereafter, this court dismissed that appeal in part ". . . as to the district court's June 13, 2011, judgment regarding claims against Joseph A. Oster."
THE EXCEPTION OF INSUFFICIENCY OF SERVICE OF PROCESS
Louisiana Code of Civil Procedure article 1201(C) provides:
Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.
Louisiana Code of Civil Procedure article 1672(C) provides:
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.
The trial court found in its reasons for judgment at the hearing on May 23, 2011:
As to the [B]oard, I'm looking at the declinatory exception of insufficiency of service, and under Code of Procedure art. 1201(C), a supplemental and amending petition is filed, you still have to request service within 90 days of its filing. And contrary to the argument made in the opposition, January 24, 2011, was not the first supplemental and amending petition. That was filed on January 6, 2009, when plaintiff amended and added the [B]oard as a party defendant, and it alleged therein that the [B]oard conspired with others to lose properly filed applications, intentionally concealed or lost or misplaced plaintiff's application, and that it released plaintiff's file to Paul Gates despite, apparently, a TRO that had been issued by Judge Caldwell. There was no request for service made by plaintiff on any party, much less on the [B]oard. Then, two years later,
plaintiff files what's titled a First Supplemental and Amending Petition, and I will note it was done without leave of court which basically means it has no force and effect because an appearance had already been made, and requested service on Mr. Oster and the [B]oard then; and then filed its second supplemental and amending, which was actually the third supplemental and amending, petition on April 20 of this year which for some reason was filed in Division D and signed by Judge Clark despite the fact that this has been a Section XXIII case throughout. But starting with that January 6, 2009, first supplemental and amending petition where the [B]oard is named, no request for service. Service is not made until January 31, 2011, which I feel is, I'm pretty comfortable saying is, beyond the 90-day period. So under 1672(C), the Code says judgment shall be rendered dismissing the action without prejudice for someone who has not been served or requested to be served within the time prescribed in 1201(C). So I'm going to pretermit on the other exceptions by the [B]oard, and I'm going to dismiss all claims against the [B]oard without prejudice at plaintiff's costs based on the failure to timely request service.
The Petition, filed on December 30, 2004, named WAFB, Mr. Gates, Mr. Hyatt, and XYZ Insurance Company as defendants. The first First Supplemental and Amending Petition, filed on January 6, 2009, named the Board as a defendant, but did not provide service of process on any of the parties. Thus, it was not until the second First Supplemental and Amending Petition was filed on January 24, 2011, that the Board was served with the lawsuit, however this filing of an amended petition was not done with leave of court, and thus had no effect. Louisiana Code of Civil Procedure article 1151 provides that a plaintiff may amend his petition without leave of court at any time before the answer thereto is served, otherwise, the petition may be amended only by leave of court or by written consent of the adverse party.
Therefore, we find no error in the district court's sustaining of the Board's declinatory exception of insufficiency of service of process.
A Joint Motion to Correct Judgment of Dismissal was filed by the parties on September 5, 2012, seeking to withdraw this court's April 12, 2012 judgment dismissing the appeal as to Mr. Oster in the companion case. Magri v. WAFB, L.L.C., 2011-1991. However, based upon our dispositions of the cases, we find that portion of the motion is moot.
--------
We render judgment, dismissing all Mr. Magri's claims against Mr. Oster with prejudice. The district court judgment in favor of the Louisiana State Board of Private Investigator Examiners and against Mr. Magri, sustaining the declinatory exception raising the objection of insufficient service of process, and dismissing Mr. Magri's claims against the Louisiana State Board of Private Investigator Examiners, is affirmed. Mr. Magri is assessed with costs.
RENDERED AND AFFIRMED. JOINT MOTION GRANTED IN PART; DENIED IN PART AS MOOT.