CASHIO v. SEARLES

NOT DESIGNATED FOR PUBLICATION

PARRO, Judge.

Randall J. Cashio appeals a judgment in favor of the Louisiana State Employees' Retirement System (LASERS), sustaining its exception of no cause of action and dismissing his claim against it. For the following reasons, we affirm the judgment.

BACKGROUND

According to Mr. Cashio's petition, in August and September of 2010, his former son-in-law, Troy B. Searles, defamed him by making false accusations about him to the Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel (ODC). Mr. Cashio asserts that, at the time, Mr. Searles worked at LASERS, as its Deputy Chief Investment Officer, and used LASERS's resources to send his accusations to the ODC. LASERS is a state agency that administers retirement benefits for certain state employees. Mr. Cashio's petition claims that he sent LASERS a written request, asking if Mr. Searles's use of its resources to communicate with the ODC had violated the agency's written policy. The petition states that Mr. Cashio's request was met with the agency's failure to reveal what, if any, disciplinary action it took against Mr. Searles for using LASERS's resources for personal business.

Mr. Cashio sued Mr. Searles and LASERS in solido for defamation. Among the allegations were claims that Mr. Searles made false accusations to the ODC about Mr. Cashio, that Mr. Searles had sent those accusations to the ODC using LASERS's resources while in the course and scope of his employment, that two LASERS officials held Mr. Cashio in low regard, and that LASERS had ratified Mr. Searles's false accusations. Separately, Mr. Cashio also alleged that Mr. Searles had defamed him in an answer to a lawsuit in Baton Rouge City Court. The petition did not allege that LASERS was involved in any way in the City Court communication. Mr. Cashio sought damages for embarrassment and injury to his professional reputation. Mr. Cashio later amended his petition to allege that the ODC advised him around November 21, 2011, that it had dismissed Mr. Searles's complaint against him.

Mr. Searles and LASERS each filed peremptory exceptions raising the objection of no cause of action. Mr. Searles's arguments included the contention that Louisiana Supreme Court Rule XIX, Section 12(A), prohibits civil suits against those filing complaints with the ODC. LASERS argued that the petition had failed to allege an essential element of a defamation claim: the making of a false and defamatory statement concerning another. After a hearing, the trial court sustained Mr. Searles's exception, in part. It dismissed the claim that Mr. Searles had made a false complaint to the ODC, but declined to dismiss the claim that Mr. Searles had filed a defamatory answer to the City Court suit. The trial court signed that judgment on May 31, 2012. By separate judgment signed January 18, 2013, the trial court sustained LASERS's exception of no cause of action and dismissed LASERS as a defendant.

Mr. Cashio filed a devolutive appeal from the judgment dismissing LASERS, asserting one assignment of error, namely, that the trial court committed legal error when it granted the exception of no cause of action filed by LASERS.

APPLICABLE LAW

No Cause of Action

A peremptory exception raising the objection of no cause of action is authorized by Louisiana Code of Civil Procedure article 927(A)(5). The Louisiana Supreme Court summarized the nature of, and the procedure governing, this exception in Fink v. Bryant, 01-0987 (La. 11/28/01), 801 So.2d 346, 348-49, as follows:

The supreme court in Fink further explained that, in reviewing a trial court's ruling sustaining an exception of no cause of action, an appellate court should subject the case to de novo review because:

Fink, 801 So.2d at 349 (citations omitted).

As the exception of no cause of action presents a question of law, our task "is simply a review of whether the trial court was legally correct or legally incorrect." See Thinkstream, Inc. v. Rubin, 06-1595 (La. App. 1st Cir. 9/26/07), 971 So.2d 1092, 1100, writ denied, 07-2113 (La. 1/7/10), 973 So.2d 730.

Defamation

Defamation is a tort which involves the invasion of a person's interest in his or her reputation and good name. Sassone v. Elder, 626 So.2d 345, 350 (La. 1993) (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111 (5th ed. 1984)). In Louisiana, a plaintiff must satisfy four essential elements to establish a cause of action for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 559. If even one of these required elements is found lacking, the cause of action fails. Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La. 7/10/06), 935 So.2d 669, 681.

ANALYSIS

On appeal, Mr. Cashio makes a two-pronged argument in support of his contention that his petition sufficiently establishes a cause of action for defamation against LASERS.1 Both prongs rest upon language in the Louisiana Supreme Court case of Trentecosta v. Beck, the pertinent part of which states:

Trentecosta, 703 So.2d at 558 (citations omitted).

Thus, as we understand Mr. Cashio's argument, he contends his petition adequately alleges that LASERS is solidarily liable with its employee, Mr. Searles, either because: Mr. Searles acted in the course and scope of his employment when he communicated with the ODC about Mr. Cashio, or LASERS ratified Mr. Searles's defamatory communications to the ODC, or both. However, the record shows that the solidary liability that Mr. Cashio claims to exist has now been destroyed. By judgment signed May 31, 2012, the trial court dismissed with prejudice the defamation claim against Mr. Searles that concerned the ODC communications. Those same allegations are the ones that Mr. Cashio now asserts make LASERS solidarily liable to him.

The imposition of solidary liability on an employer for the acts of its employee has been described this way: "[a]n employer and an employee are solidarily liable for damages caused by the employee's negligence although the employee's liability is based on his negligence and the employer's liability is based upon his vicarious responsibility." William E. Crawford, Louisiana Civil Law Treatise, Tort Law § 8:2 (2d ed. 2009). While Professor Crawford's statement refers to an employee's negligence, the tort of defamation applies to acts of fault ("negligence or greater") on the part of the publisher. See Trentecosta, 703 So.2d at 559. However, the level of fault element of defamation does not put defamation beyond the reach of vicarious liability. Trentecosta itself imposed vicarious liability upon an employer for its employee's defamatory communications, even though it found the level of fault of the employee's actions exceeded mere negligence, meeting "the actual malice standard of reckless disregard." Trentecosta, 703 So.2d at 561.

In Louisiana, the source of master-servant liability, or respondeat superior, is Civil Code article 2320. It makes employers "answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed." LSA-C.C. art. 2320; see also Crawford, supra at § 9:4.

The nature of the employer's vicarious liability under respondeat superior "is secondary or derivative in the sense that the employer is not himself a wrongdoer or tortfeasor." Sampay v. Morton Salt Co., 395 So.2d 326, 328 (La. 1981). Thus, as Professor Crawford notes: "[i]t goes without saying that if the employee was not guilty of tortious conduct in the alleged wrong, [then] there is no vicarious responsibility on the employer." Crawford, supra at § 9:11(D). In other words, the vicarious liability of the employer hinges on the liability of the employee. That reasoning was employed by the Second Circuit in Franklin v. Haughton Timber Co., 377 So.2d 400, 406 (La. App. 2nd Cir. 1979), writ denied, 380 So.2d 624 (La. 1980). There, the court held that when the employee is not liable in tort, then his employer could not be vicariously liable in tort. Id.

It was vicarious liability that the Louisiana Supreme Court imposed on the employer in Trentecosta for its employee's defamatory acts. Trentecosta, 703 So.2d at 559. However, there is a critical difference here: once the trial court dismissed Mr. Cashio's claim against LASERS's employee for his communications to the ODC, then that meant that LASERS could not be vicariously liable. See Franklin, 377 So.2d at 406.

This principle, namely, that the employer's vicarious liability hinges on the tort liability of the employee, is fatal to both prongs of Mr. Cashio's argument on appeal: Mr. Searles was in the course and scope of his employment, or Mr. Searles's acts were ratified by LASERS, or both. Once the trial court dismissed Mr. Cashio's claim against Mr. Searles stemming from his ODC communications, that meant that LASERS could not be vicariously liable to Mr. Cashio under either of his arguments. Accordingly, our de novo review finds that the trial court properly sustained the exception of no cause of action as to Mr. Cashio's claim of vicarious liability against LASERS.

Additionally, we note that Louisiana Code of Civil Procedure article 934 provides that, "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." The same article further provides that, if the grounds of the objection cannot be cured by amendment, then the court shall dismiss the claim in question. Based on the facts currently alleged in Mr. Cashio's petition, as amended, we find that the basis for our conclusion in support of the exception of no cause of action is not curable by amendment. Therefore, we find that an opportunity to amend is not warranted.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court sustaining LASERS's peremptory exception raising the objection of no cause of action as to defamation. All costs of this appeal are taxed to Randall J. Cashio.

JUDGMENT AFFIRMED.