Plaintiff, Kenneth Guilbeaux, appeals the trial court's judgment on defendants' various exceptions of no cause of action regarding an allegedly defamatory article and other allegedly defamatory statements made by defendant, Kevin Kean, about his business dealings with the plaintiff involving defendant, Grand Casinos. Some of Kevin Kean's statements were published by The Times of Acadiana, also a defendant in this suit.
We affirm the trial court's judgment on The Times' exception of no cause of action. That portion of the appeal which addresses the exceptions of Kean and Grand Casinos is premature, because this is an appeal of a partial final judgment not authorized by La. Code Civ.P. art. 1915.
We affirm in part and remand in part.
ISSUES
The issues before this court are:
FACTS
Kenneth Guilbeaux filed a defamation suit against The Times of Acadiana, Kevin Kean, and Grand Casinos, Inc. In his initial suit, he alleged he was defamed by the publication of an article in The Times which discussed his business dealings with Kevin Kean and Grand Casinos. The article detailed Guilbeaux's and Kean's attempt to bring riverboat gambling to Lafayette. The Times, Kean, and Grand Casinos filed exceptions of no cause of action. The trial court upheld the exceptions of no cause of action, finding the alleged defamatory statements failed to state a cause of action in defamation. The trial judge also concluded Louisiana does not recognize a cause of action for tortious interference with business relations, and there was no basis for a claim of intentional infliction of mental distress. The court allowed the plaintiff to amend his petition to state viable causes of action.
Kenneth Guilbeaux amended his petition and stated that Kean had defamed him by making statements to various individuals similar to the statements published in The Times. Guilbeaux also attached a copy of the article published in The Times. In response to the first amended petition, the defendants again filed exceptions of no cause of action. While the hearing on these exceptions was pending, Guilbeaux filed a motion to recuse the trial judge, the Honorable Ronald D. Cox.
Judge Ellis Thompson heard and subsequently denied the plaintiff's motion for recusal. Mr. Guilbeaux sought writs to this court. This court denied his writ, finding no error in the trial court's ruling.
The trial court, in ruling on the first amending and supplemental petition, found the plaintiff's claim against The Times failed to state a cause of action in either defamation or intentional infliction of emotional distress, and dismissed all claims against The Times with prejudice. It also found Louisiana did not recognize a cause of action for tortious interference with business relations.
The trial court deferred judgment on Kean's exceptions of no cause of action, and ordered the plaintiff to plead with more particularity the facts which supported his claims of defamation and intentional infliction of emotional distress in the first amending and supplemental petition. The trial court also deferred judgment on Grand Casinos' exceptions of no cause of action on the first amending and supplemental petition. It granted the exceptions of no cause of action filed by Kean and Grand Casinos based on the allegations in Guilbeaux's original petition.
Kenneth Guilbeaux responded with a second supplemental and amending petition
Kenneth Guilbeaux appeals the trial court's judgment on the exceptions of no cause of action by The Times which determined that his original and first supplemental and amending petitions did not state a cause of action against The Times of Acadiana and its judgment on the exceptions of no cause of action filed by Kevin Kean and Grand Casinos dismissing all claims in Guilbeaux's original petition.
Guilbeaux also appeals the denial of his motion to recuse the trial judge.
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993). (Citations omitted). Any documents annexed to the petition must also be accepted as true. Kuebler v. Martin, 578 So.2d 113 (La.1991); Crooms v. Lafayette Parish Government, 628 So.2d 1224 (La.App. 3 Cir. 1993).
To maintain a defamation action, the following elements must be shown: 1) defamatory words, 2) publication, 3) falsity, 4) malice, actual or implied, 5) and resulting injury. Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196 (La. 1980). A defamatory communication is one which tends to harm a person's reputation so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is one for the court. Sassone v. Elder, 626 So.2d 345, 352 (La.1993).
This question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. In order to determine whether the statement is actionable, the court must consider each portion of the defamatory statement separately and then consider each portion in the context of the entire article. Id.
To be actionable, defamatory words must be "of and concerning" the plaintiff or, directly or indirectly, cast a personal reflection on the plaintiff. Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790 (La.1992). Accusation of criminal conduct is defamatory per se, and in such cases proof of actual malice is not required. Cangelosi, 390 So.2d at 198.
The plaintiff argues the trial court erred by focusing on the merits of the claim and improperly applied a summary judgment standard to address an exception of no cause of action. However, in order to properly test the sufficiency of the pleadings under an exception of no cause of action, the court must determine whether the law affords a remedy on the pleadings. The first element of defamation requires the showing of defamatory words. When a court determines the communications at issue are not defamatory, and therefore not actionable, the court may pretermit discussion of the other elements of defamation. Sassone, 626 So.2d at 352. The trial court was correct in considering whether the statements in the article constituted defamation.
We agree with the trial court's assessment of the following statements from the published article, and quote from his well-reasoned opinion:
After reviewing the above published statements and considering the article in its entirety, we conclude the article could not be understood by a reasonable and detached listener to harm Kenneth Guilbeaux's reputation or to lower his esteem in the community. We hold the published statements do not constitute defamatory words, and are not actionable. Accordingly, we do not reach the issues of falsity, of actual or implied malice, or injury.
B. Interference With A Contract And Intentional Infliction Of Emotional Distress
Kenneth Guilbeaux also asserts the trial court incorrectly sustained The Times' exceptions of no cause of action for tortious interference with business relations and for intentional infliction of emotional distress.
538 So.2d at 234.
A review of the record reveals no facts which support the above cause of action. This tort only applies to a corporate officer interfering with his employer's contractual relations with third persons. There is no evidence of a contractual relationship between Guilbeaux and Grand Casinos. The trial court correctly sustained The Times' exception of no cause of action for this claim.
In order to maintain a cause of action for intentional infliction of emotional distress, the following elements must be established:
White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991).
Extreme and outrageous conduct is defined by the court in White as conduct so atrocious as to pass the boundaries of decency and to be utterly intolerable to civilized society. The court stated such extreme and outrageous conduct "may arise from an abuse by the actor of a position, or a relation with the other, which gives him or her actual or apparent authority over the other, or power to affect his or her interests." Id. at 1209-1210. The conduct must be intended to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry, or the like. White, 585 So.2d at 1210.
We distinguish the instant case from our decision in White v. White, 93-1389 (La.App. 3 Cir. 6/15/94), 641 So.2d 538. In White, we reviewed an exception of no cause of action and found sufficient allegations in the petition to state a cause of action for a former wife's claim for intentional infliction of emotional distress against her former husband's current wife. In the White case, there were sufficient allegations in the petition to remand the case for trial. The facts, though incomplete, were egregious enough to survive an exception of no cause of action and at least allow the opportunity for a trial.
In this case, we have all of the facts before us in the pleadings and attachments which allegedly support Mr. Guilbeaux's claim for intentional infliction of emotional distress. The well pleaded facts in this case are not sufficient to establish a claim for intentional infliction of emotional distress. The facts do not support Mr. Guilbeaux's claim that the conduct of The Times was extreme or outrageous; neither do the facts support Mr. Guilbeaux's claim that he has suffered severe emotional distress, or that The Times either desired to inflict or knew that severe emotional distress would be certain or substantially certain to result from its conduct. The trial court correctly sustained The Times' exception of no cause of action for this claim.
C. The Motion For Recusal
Kenneth Guilbeaux argues on appeal the trial court erred by denying his motion to recuse Judge Ronald D. Cox because of the judge's activity in local politics involving the attempt to recall Kenny Bowen, the mayor of Lafayette. We note the appeal of this issue is not properly before this court. Ordinarily, this court will only review issues
The issue of Judge Cox's recusal was the subject of a writ application to this court. We considered the issue and denied the writ, finding no error in the trial court's ruling. Guilbeaux v. The Times of Acadiana, et al., docket number W94-376.
Although this panel is not bound by our previous decision on a writ application, we are guided by certain "law of the case" principles as outlined in Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81, 83 (La.1973), as follows:
(Emphasis added; citations omitted). See also, State, DOTD v. Dietrich, 625 So.2d 634 (La.App. 3 Cir.1993), writ denied, 631 So.2d 448 (La.1994).
We conclude this is not a case of "palpable former error;" there is not even a doubt as to the correctness of our prior writ decision.
D. Kevin Kean's and Grand Casinos, Inc.'s Exceptions Of No Cause Of Action
We find the appeal by plaintiff, Kenneth Guilbeaux, is premature because he has appealed a partial final judgment not authorized by La.Code Civ.P. art. 1915. The supreme court has stated that La.Code Civ.P. art. 1915 lists the exclusive instances in which partial final judgments are permitted. Everything on Wheels v. Subaru South, 616 So.2d 1234 (La.1993).
La.Code Civ.P. art. 1915 provides for a partial final judgment as follows:
Article 1915 limits a court's authority to render a partial final judgment which is appealable. Of course, a judgment which adjudicates all claims and defenses asserted by all of the parties, is appealable, subject to jurisdictional limitations. Subaru, 616 So.2d at 1240-1241. A party who is completely exonerated in pretrial proceedings should be spared further litigation. Id. Because The Times was completely exonerated by the trial court's ruling, Guilbeaux's appeal was proper and timely.
CONCLUSION
For the above reasons, we affirm the trial court's ruling on The Times' exceptions of no cause of action. Finding no palpable former error, we decline to reconsider our prior ruling on the recusal of the trial judge. We find the portion of the appeal which addresses Kean's and Grand Casino's exceptions of no cause of action is premature, and remand these issues to the trial court for further proceedings consistent with the views expressed herein.
All costs at the trial and appellate levels are assessed against plaintiff, Kenneth J. Guilbeaux.
SAUNDERS, J., dissents from that portion of the opinion and judgment which affirms the no cause of action against The Times of Acadiana.
Comment
User Comments