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White v. New Orleans Center

Court of Appeals of Louisiana, Fourth Circuit

September 25, 2019

RORY T. WHITE AND ROMAINE L. WHITE INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, RICHARD WHITE
v.
NEW ORLEANS CENTER FOR THE CREATIVE ARTS RORY T. WHITE, ROMAINE L. WHITE AND RICHARD WHITE
v.
NEW ORLEANS CENTER FOR THE CREATIVE ARTS, ET AL.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-02903, DIVISION "G-11" Honorable Robin M. Giarrusso, Judge

          Michael Samuel Zerlin ATTORNEY AT LAW COUNSEL FOR PLAINTIFFS/APPELLANTS

          Angela J. O'Brien William David Coffey LOUISIANA ATTORNEY GENERAL'S OFFICE Jeff Landry, Attorney General LOUISIANA DEPARTMENT OF JUSTICE COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Dale N. Atkins

          Dale N. Atkins, Judge

         Plaintiffs, Rory T. White, Romaine L. White, and Richard White appeal the trial court's judgment of November 27, 2018, as amended on March 14, 2019, which granted the exception of no cause of action filed by Defendants, New Orleans Center for the Creative Arts, Kyle Wedberg, Blake Coheley, Amy Alvarez, and Lee Randall, and dismissed their lawsuit with prejudice. For the following reasons, we reverse the trial court's ruling on the exception and remand the case to allow Plaintiffs the opportunity to amend their petition and for further proceedings consistent with this opinion.

         FACTUAL AND PROCEDURAL HISTORY

         This lawsuit arises from the reporting of an alleged sexual assault of a student at New Orleans Center for the Creative Arts ("NOCCA") by Richard White ("Richard"), another NOCCA student.

         NOCCA is a public high school that provides arts education and academic instruction to qualified students from the State of Louisiana. NOCCA is an agency of the State of Louisiana created by La. R.S. 17:1970.23.

         Kyle Wedberg, the President and CEO of NOCCA; Blake Coheley, NOCCA Director of Student Services; and Amy Alvarez, a social worker at NOCCA are all NOCCA employees/administrators. Lee Randall is the Chairman of the NOCCA Board, and according to Plaintiffs, is a public official and not an employee of NOCCA.

         In February 2016, during Richard's twelfth grade year, NOCCA administrators were notified that Richard had allegedly committed acts of sexual misconduct against another student. Thereafter, Richard was sent home and his parents, Rory White and Romaine White ("the Whites"), were advised that Richard "had done something outside of school" that mandated NOCCA to report the allegations against Richard to the New Orleans Police Department ("NOPD") and the Department of Children and Family Services ("DCFS").[1]

         NOCCA employees, Wedberg, Coheley, and Alvarez, met with the Whites and Richard ("Plaintiffs") on February 29, 2016, about the allegations. According to Plaintiffs, NOCCA refused to name the student-accuser and refused to reveal the substance of the allegations. They allege that Richard was denied minimal due process because he was not informed of the allegations nor given an opportunity to respond to the charges or defend himself. Plaintiffs were informed that Richard was not allowed to attend class and was required to complete the rest of the semester from home. At the meeting, a letter of understanding was given to the Plaintiffs, stating that Richard would not be able to participate in any school activities, including social events, art performances, or graduation, without forty-eight hour advance approval from NOCCA administrators. Plaintiffs allege Richard was unable to attend school from February 26, 2016 through the end of the school year, approximately two and one half months. They further claim that Richard was required to determine on his own what assignments he was required to complete without the benefit of instruction.

         On March 22, 2016, the Whites, individually and on behalf of Richard, who was a minor at the time, filed a petition for injunction, temporary restraining order, and preliminary injunction against NOCCA seeking an order to allow Richard to return to class and participate in activities and prohibiting NOCCA from interfering with Richard's free enjoyment thereof. [2] The trial court denied the request for injunctive relief but ordered that NOCCA contact "the parents of the minor to ensure that the minor has clear instructions on his education requirements."

         On March 1, 2017, the Whites and Richard, who was named as a plaintiff in his own right as he was now over the age of majority, filed a petition for damages against NOCCA, as well as Kyle Wedberg, Blake Coheley, Amy Alvarez, and Lee Randall ("Defendants"). Plaintiffs alleged causes of action for defamation, intentional infliction of emotional distress, deprivation of Constitutional Rights, negligent supervision/failing to protect against bullying, false light invasion of privacy, conversion, and loss of consortium.[3] Specifically, Plaintiffs alleged that Defendants published statements about Richard to the NOPD and the DCFS that were defamatory per se because they expressly or implicitly accused Richard of criminal conduct and/or injured his personal and professional reputation. Plaintiffs claimed Defendants' actions were extreme and outrageous and they knew that severe emotional distress was substantially certain to follow. They alleged that Defendants acted under the color of state law when they deprived Richard of his rights to liberty, property, and privacy. Plaintiffs claimed that Defendants had a statutory duty to protect Richard against bullying from other students and failed to provide reasonable supervision to prevent other students from spreading untrue rumors, shunning Richard, and threatening harm to him. Plaintiffs alleged that Richard's privacy was invaded by Defendants' actions that placed him in a false light, causing other students, teachers, and school personnel to believe that he had been expelled and/or charged with a crime. Plaintiffs claimed that when Defendants ordered Richard to leave school, they had in their custody and control items belonging to Plaintiffs, including Richard's hard drive, data, and lighting equipment. They claimed Defendants have declined to return these items despite repeated requests. Finally, Plaintiffs alleged that the Whites suffered as a result of the damages Richard incurred and seek damages for loss of love and affection, loss of society, and loss of consortium.

         In response, Defendants filed an exception of no cause of action, claiming they have immunity from the lawsuit because Plaintiffs' allegations against them originate from Defendants' mandatory duty to report the accusations against Richard and mandatory reporters are protected from liability under Louisiana law. Defendants argued that as a result, Plaintiffs failed to allege sufficient facts to support a cause of action.

         The injunction suit and the damages suit were consolidated on November 17, 2017.

         The exception of no cause of action came before the trial court on October 26, 2018, and the trial court granted the exception from the bench.[4] A judgment granting the exception of no cause of action was signed on November 27, 2018.[5]

         Plaintiff filed a motion for devolutive appeal on December 5, 2018, which was signed by the trial court on December 6, 2018.

         On March 12, 2019, this Court ordered the trial court to amend the November 27, 2018 judgment to include the "appropriate and necessary decretal language."[6] This Court's order also stayed briefing deadlines until the record was supplemented with the amended judgment. The trial court executed an amended judgment on March 14, 2019, and issued notice of signing of judgment the following day.[7]

         On March 22, 2019, this Court issued a notice of completion of record. This timely appeal follows.[8]

         DISCUSSION AND ANALYSIS

         Plaintiffs raise two assignments of error. They contend that the trial court erred in granting the exception of no cause of action because Defendants' alleged qualified immunity as a mandatory reporter cannot be raised on an exception of no cause of action and because the immunity for mandatory reporting is only applicable to defamation claims and not a defense to the other allegations against Defendants. Plaintiffs also claim the trial court erred in granting the exception without allowing Plaintiffs the opportunity to amend pursuant to La. C.C.P. art. 934.

         Assignment of Error No. 1: Granting of the Exception of No Cause of Action

         The peremptory "exception of no cause of action raises a question of law, " and a court of appeal reviews the district court's ruling de novo. Ocwen Loan Servicing, LLC v. Porter, 2018-0187, p. 3 (La.App. 4 Cir. 5/23/18), 248 So.3d 491, 495.

         "The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action." La. C.C.P. art. 923.

         A peremptory exception of no cause of action questions whether the law extends a remedy against a defendant to anyone under the factual allegations of a petition. Mid-S. Plumbing, LLC v. Dev. Consortium-Shelly Arms, LLC, 2012-1731, p. 4 (La.App. 4 Cir. 10/23/13), 126 So.3d 732, 736. In other words, an exception of no cause of action tests "the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading." Green v. Garcia-Victor, 2017-0695, p. 4 (La.App. 4 Cir. 5/16/18), 248 So.3d 449, 453 (quoting Moreno v. Entergy Corp., 2010-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706).

         "In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition." Green, 2017-0695, p. 4, 248 So.3d at 453(quoting 2400 Canal, LLC v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll., 2012-0220, p. 7 (La.App. 4 Cir. 11/7/12), 105 So.3d 819, 825). "A court cannot consider assertions of fact referred to by the various counsel in their briefs that are not pled in the petition." Id. "The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law." Id. Further, "any doubt must be resolved in the plaintiffs' favor." Id. However, the mere conclusions of the plaintiff unsupported by facts do not set forth a cause of action. Green, 2017-0695, p. 4, 248 So.3d at 453-54 (citing 831 Bartholomew Investments–A, L.L.C. v. Margulis, 2008-0559, p. 10 (La.App. 4 Cir. 9/2/09), 20 So.3d 532, 538). Plaintiffs argue that the trial court erred in granting the exception because a mandatory reporter's qualified immunity cannot be asserted on an exception of no cause of action and because the immunity for a mandatory reporter is only relevant to defamation claims and not a defense to the other allegations against Defendants.

         Mandatory Reporter

         A mandatory reporter is defined in La. Ch. C. art. 603, and provides in pertinent part:

(17) "Mandatory reporter" is any of the following ...

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