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Frigon v. Universal Pictures, Inc.

Court of Appeals of Louisiana, First Circuit

June 21, 2018

LISA SEAL FRIGON, AS THE ADMINISTRATRIX OF THE ESTATE OF ADLER BERRIMAN SEAL
v.
UNIVERSAL PICTURES, INC., DEBORAH DUBOIS SEAL, AARON SEAL, CHRISTINA SEAL WARMACK, AND DEAN BERRIMAN SEAL

          On appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 643, 044 Honorable Donald R. Johnson, Judge Presiding

          Roy H. Maughan, Jr. Namisha D. Patel Joshua D. Roy Baton Rouge, LA Counsel for Plaintiff/Appellant Lisa Seal Frigon, as the administratrix of the Estate of Adler Berriman Seal

          Mary Ellen Roy Dan Zimmerman New Orleans, LA Counsel for Defendant/Appellee Universal City Studios, LLC

          Mary E. Heck Barrios Denham Springs, LA Counsel for Defendants/ Appellees Deborah Dubois Seal, Dean Berriman Seal, Aaron Christopher Seal, and Christina Seal Warmack

          BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.

          GUIDRY, J.

         A succession representative appeals the dismissal of claims brought on behalf of the decedent's estate relative to the sale of the decedent's "life story." For the following reasons, we: (1) affirm the sustaining of the peremptory exceptions raising the objection of no cause of action; (2) reverse the denial of the special motions to strike; and (3) render judgment to grant the special motions to strike.

         FACTS AND PROCEDURAL HISTORY

         On February 19, 1986, Adler Berriman Seal, who was more commonly known as simply Barry Seal, died intestate. In 2014, Universal City Studios, LLC ("Universal"), through its Universal Pictures division, executed a multi-part agreement whereby it purchased rights to the life story of the decedent from the decedent's surviving spouse and children of his third marriage: Debbie Seal, Aaron Seal, Christina Seal Warmack, and Dean Berriman Seal (collectively "Seal defendants"). In the agreement, the Seal defendants also conveyed rights to their life stories and agreed to act as consultants for a feature film based on the decedent's life that was to be developed and produced by Universal.[1]

         Thereafter, the decedent's daughter from his first marriage, Lisa Seal Frigon, was appointed administratrix of his succession.[2] Following her appointment, Ms. Frigon filed a petition against Universal[3] and the Seal defendants, seeking to nullify the aforementioned agreement and further seeking damages on behalf of the decedent's estate for violation of privacy and publicity rights, misappropriation, false advertising, unfair trade practices, and conversion. Ms. Frigon also sought to enjoin any further development, production, or advertisement of the motion picture based on the decedent's life.

         In response to the petition, Universal filed a peremptory exception raising the objection of no cause of action, seeking dismissal of Ms. Frigon's claims. Universal also filed a special motion to strike, pursuant to La. C.C.P. art. 971, as an additional basis for dismissal of Ms. Frigon's claims. The Seal defendants likewise filed a pleading asserting a peremptory exception raising the objection of no cause of action and a special motion to strike pursuant to La. C.C.P. art. 971 seeking the dismissal of Ms. Frigon's claims against them.

         The trial court held a joint hearing on the peremptory exceptions and special motions to strike filed by Universal and the Seal defendants. On June 15, 2016, the trial court signed a judgment sustaining the peremptory exception raising the objection of no cause of action and dismissing Ms. Frigon's petition with prejudice as to Universal only. The trial court denied Universal's special motion to strike in that same judgment. The judgment made no reference to the exception and special motion to strike filed by the Seal defendants.

         On June 27, 2016, Ms. Frigon filed a motion for partial new trial, seeking reconsideration of the peremptory exception sustained in favor of Universal, contesting the trial court's failure to allow amendment of the petition pursuant to La. C.C.P. art. 934, and requesting an award of costs and attorney fees pursuant to La. C.C.P. art. 971(B), as the prevailing party on the special motion to strike. On the proposed order attached to the motion, however, a diagonal line appears striking through a portion of the text of the order, along with an unsigned, handwritten annotation dated July 7, 2016, stating, "[s]ee order to vacate signed on June 28, 2016." No such order is in the record before us; however, the minute entry for June 28, 2016 recites: "Order to Vacate filed and signed. The Judgment signed on June 15, 2016 is VACATED. The Court will rule after further review of the relevant law and jurisprudence. Copy of order mailed to all parties."

         On August 30, 2016, [4] the trial court signed a second judgment in which it decreed that the special motions to strike filed by Universal and the Seal defendants were denied. The judgment also simply "granted" the peremptory exceptions raising the objection of no cause of action filed by Universal and the Seal defendants, but the judgment otherwise contains no decretal language pertaining to the exception. Ms. Frigon filed a motion for new trial in relation to the August 30, 2016 judgment on essentially the same grounds asserted in the previously filed motion for partial new trial, but she expanded her motion to include the rulings relative to the Seal defendants as well. The trial court scheduled a hearing on the motion for new trial for December 5, 2016.

         Following the hearing held on December 5, 2016, two judgments were signed by the trial court. The first judgment, signed on February 14, 2017, denied the "motion for partial new trial" relative to granting the peremptory exceptions in the August 30, 2016 judgment and declared that "Plaintiffs petition against all defendants is DISMISSED WITH PREJUDICE." The judgment additionally provides:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the issue related to the Motion for Partial new trial as it relates to reasonable attorney fees and costs associated with the Special Motion to Strike filed by Defendant, Universal City Studios LLC, which this Court denied in its Judgment signed on August 30, 2016 and ordered all parties to pay their own cost and attorney fees shall be GRANTED. The Defendant, Universal City Studios, LLC, was the prevailing party for the Special Motion to Strike. Pursuant to the Louisiana Code of Civil Procedure Article 971, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.

         The second judgment, signed February 15, 2017, [5] simply denied the plaintiffs motion for partial new trial; however, a diagonal line appears across the face of the judgment with an accompanying handwritten annotation stating: "See judgment signed on Feb. 14, 2017 ... File as Is."

         The matter now comes before us pursuant to a devolutive appeal of the judgments signed on August 30, 2016 and February 14, 2017, filed by Ms. Frigon. Universal has answered the appeal requesting that this court "modify, revise, or reverse in part" the August 30, 2016 judgment to grant its special motion to strike, pursuant to which Universal would be entitled to an award of reasonable attorney fees and costs.[6] The Seal defendants also filed an answer to Ms. Frigon's appeal, requesting that the August 30, 2016 judgment, which denied their special motion to strike, be "corrected, revised, or reversed in part" to grant their special motion to strike. And in line with that request, the Seal defendants further request that the February 14, 2017 judgment be "corrected, revised, [and/or] reversed in part" to award them reasonable attorney fees and costs as a prevailing party on the special motion to strike. Finally, the Seal defendants request an award of additional attorney fees and costs incurred for this appeal.[7]

         DISCUSSION

         No Cause of Action

         In her first two assignments of error, Ms. Frigon claims that the trial court erred in sustaining the peremptory exceptions raising the objections of no cause of action filed by Universal and the Seal defendants and in failing to permit her to amend the petition to state a cause of action.

         The purpose of the peremptory exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. In ruling on a peremptory exception raising the objection of no cause of action, the court must determine whether the law affords any relief to the plaintiff if the factual allegations in the petition were proven at trial. Dural v. Louisiana State Board of Cosmetology, 08-0929, p. 3 (La.App. 1st Cir. 12/23/08), 4 So.3d 874, 877.

         All facts pled in the petition must be accepted as true. CLB6l, Inc. v. Home Oil Company, LLC, 17-0557, pp. 3-4 (La.App. 1st Cir. 11/1/17), 233 So.3d 656, 660. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. However, where evidence is admitted without objection, such evidence may be considered in determining whether a legal remedy exists. Emigh v. West Calcasieu Cameron Hospital, 13-2985, p. 4 (La. 7/1/14), 145 So.3d 369, 372. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. CLB6L Inc., 17-0557 at p. 4, 233 So.3d at 660.

         Generally, an exception of no cause of action should not be maintained in part, so as to prevent a multiplicity of appeals, thereby forcing an appellate court to consider the merits of the action in a piecemeal fashion. If there are two or more items of damages or theories of recovery that arise out of the operative facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action should not be rendered to dismiss an item of damages or theory of recovery. Robinson v. Papania, 15-1354, pp. 5-6 (La.App. 1st Cir. 10/31/16), 207 So.3d 566, 572, writ denied, 16-2113 (La. 3/13/17), 216 So.3d 808. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Further, any doubts are resolved in favor of the sufficiency of the petition. State, by & through Caldwell v. Astra Zeneca AB, 16-1073, p. 13 (La.App. 1st Cir. 4/11/18), ___ So.3d ___, ___ (2018 WL 1755535, at *7); Callowav v. Lobrano, 16-1170, p. 5 (La.App. 1st Cir. 4/12/17), 218 So.3d 644, 649.

         In reviewing a trial court's ruling sustaining an exception raising the objection of no cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the trial court's decision is based solely on the sufficiency of the petition. An exception raising the objection of no cause of action should be sustained only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Dural, 08-0929 at p. 3, 4 So.3d at 877.

         In this case, Ms. Frigon has asserted claims of nullity, violation of the rights of privacy and publicity, unfair trade practices, misappropriation, false advertising, and conversion, but from her arguments below and on appeal, it is evident that the principal claim at issue is the right of publicity. Indeed, except for the claim of privacy, all of the other claims asserted by Ms. Frigon are premised on finding that such a right exists and that the decedent's succession possesses it.[8] It should be duly noted that Ms. Frigon is not appearing on her own behalf, but as the representative of the decedent's succession.

         As administratrix, Ms. Frigon is deemed to have possession of all property of the succession and is required to enforce all obligations in its favor. La. C.C.P. art. 3211. Additionally, "[e]xcept as otherwise provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration." La. C.C.P. art. 685. Comment (b) to Article 685 notes that "[t]his article is declaratory of the jurisprudence so far as it recognizes the right of an administrator alone to institute and prosecute a personal action." The comment goes on further to observe that "[t]here is no reason today why a succession representative alone should not be able to enforce judicially all rights of the deceased, or of his succession, whether the action is personal, real or mixed." So whether the right of publicity is viewed as a "right" or "property, " to the extent it is deemed to exist under Louisiana law and survives the decedent, then clearly under La. C.C.P. arts. 685 and 3211, Ms. Frigon would have authority to assert such a claim on behalf of the decedent's estate.

         Right ...


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