Opinion
No. 08-258.
December 10, 2008 NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, NO. 109797-E HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE.
Rena L. Hester Pecantte-Burton Burton, LA, Counsel for Plaintiff/Appellant: Lucretia Pecantte-Burton.
Marcus A. Bryant, LA, Counsel for Defendant/Appellee: Lionel Collins.
Court composed of Sylvia R. Cooks, J. David Painter, and Chris J. Roy, Sr., Judges.
The plaintiff, Lucretia Pecantte-Burton, appeals from the trial court's grant of an exception of no cause of action in favor of the defendant, Lionel Collins. For the following reasons, we affirm.
FACTS
Pecantte-Burton, an attorney, was hired by Collins and his wife to quiet a tax title on property acquired at a tax sale. This involved appointing a curator to represent the absentee defendants. A consent judgment was reached in the matter, and the costs and expenses of the curator ad hoc were submitted to the trial court. Thereafter, Collins wrote a letter declaring that Pecantte-Burton was attempting to collect twice on the curator's fees and stated in the letter that she was irresponsible and unethical in her profession. This led to Pecantte-Burton filing a petition seeking damages as a result of the alleged defamation of her character. In response, Collins filed a peremptory exception of no cause of action, which was granted by the trial court. This appeal by Pecantte-Burton followed.
ISSUE
On appeal, Pecantte-Burton agues that the trial court erred in finding that her petition alleged a cause of action for intentional infliction of emotional distress rather than for defamation.
EXCEPTION NO CAUSE OF ACTION
"The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition." Cleco Corp. v. Johnson, 01-175, p. 3 (La. 09/18/01), 795 So.2d 302, 304 (citation omitted). The purpose of the exception of no cause of action is to determine the legal sufficiency of the petition. Barrie v. V.P. Exterminators, Inc., 625 so.2d 1007 (La. 1993). The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to plaintiff if those facts raised through the exception cannot be removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. Code Civ.P. art. 934.
Washington Mut. Bank v. Monticello, 07-1018, p. 7 (La.App. 3 Cir. 2/26/08), 976 So.2d. 251, 256, writ denied, 08-530 (La. 4/25/08), 978 So.2d 369.
Defamation
Defamation is a tort which involves the invasion of a person's interest in his or her reputation and good name. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129; Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 715. A successful claimant in a defamation action must establish the following elements: (1) defamatory words; (2) publication; (3) falsity; (4) malice; and (5) injury. Hines v. Arkansas Louisiana Gas Co., 613 So.2d 646 (La.App. 2d Cir. 1993), writ denied, 617 So.2d 932 (La. 1993). If even one of the required elements of the tort is lacking, the cause of action fails. Costello, supra; Cooksey v. Stewart, 41,336 (La.App. 2d Cir. 8/23/06), 938 So.2d 1206; Kosmitis v. Bailey, 28,585 (La.App. 2d Cir. 12/20/96), 685 So.2d 1177. Chapman alleges that the statements made were defamatory per se. Words which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one's personal or professional reputation, are considered defamatory on their face, or defamatory per se. Bell v. Rogers, 29,757 (La.App. 2 Cir. 8/20/97), 698 So.2d 749; Elmer v. Coplin, 485 So.2d 171 (La.App. 2d Cir. 1986), writ denied, 489 So.2d 246 (La. 1986). When the plaintiff proves publication of words which are defamatory per se, the elements of falsity and malice are presumed, but may be rebutted by the defendant. Id.
Even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows either (1) the statement was true, or (2) the statement was protected by a privilege, absolute or qualified. Costello, supra; Cooksey, supra. A conditional or qualified privilege is applicable if the communication is made in good faith on any subject matter in which the person communicating has an interest or in reference to which he has a duty to a person having a corresponding interest or duty. Aranyosi v. Delchamps, Inc., 98-1325 (La.App. 1st Cir. 6/25/99), 739 So.2d 911, writ denied, 99-2199 (La. 11/5/99), 750 So.2d 187. Good faith is defined as a statement made with reasonable grounds for believing its truth. Only when lack of such reasonable grounds is found can it be said that the person uttering the statement is actuated by malice or ill will. Ward v. Sears, Roebuck Co., 339 So.2d 1255 (La.App. 1st Cir. 1976); Aranyosi, supra.
Chapman v. Ebeling, 41,710, pp. 8-9 (La.App. 2 Cir. 12/13/06), 945 So.2d 222, 228.
In this instance, Pecantte-Burton's petition alleges the following facts:
On or about May 15, 2007, the defendant, LIONEL COLLINS, maliciously and in reckless disregard for the truth intentionally caused emotional suffering to the plaintiff and plaintiff's reputation by writing a letter declaring that the plaintiff was irresponsible, unethical in her profession and accursed plaintiff of attempting to collect twice on the curator's fees.
She further alleged that as a result of this incident, she "suffered severe physical pain and suffering and mental and emotional distress."
During the hearing on the exception, the trial court held that Pecantte-Burton's pleading failed to state a cause of action for intentional infliction of emotional distress. The tort of intentional infliction of emotional distress is established if the plaintiff proves: (1) conduct of the defendant that was extreme and outrageous; (2) emotional distress suffered by the plaintiff that is severe; and (3) that the defendant desired or knew that severe emotional distress was certain or substantially certain to result from his conduct towards the plaintiff. Viator v. Miller, 04-1199 (La.App. 3 Cir. 4/27/05), 900 So.2d 1135.
After reviewing the facts alleged in the pleading, we find that the trial court was correct in granting the exception of no cause of action in favor of Collins. Even accepting the facts alleged as true, we find that Pecantte-Burton's allegations fail to state a cause of action for defamation as Collins' statement was protected by a qualified privilege pertaining as it did to Pecantte-Burton's prior legal representation of him.
We further agree with the trial court that Pecantte-Burton's petition has failed to state a cause of action for intentional infliction of emotion distress as we find that the words used in the statement were neither extreme nor outrageous such as to cause her to suffer severe and emotional distress. Accordingly, the judgment of the trial court granting the exception of no cause of action in favor of Collins is affirmed.
CONCLUSION
The trial court's judgment granting the peremptory exception of no cause of action in favor of the defendant-appellee, Lionel Collins, is affirmed. The costs of this appeal are assessed to the plaintiff-appellant, Lucretia Pecantte-Burton.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION, Uniform Rules — Courts of Appeal, Rule 2-16.3.