RORY T. WHITE AND ROMAINE L. WHITE INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, RICHARD WHITE
NEW ORLEANS CENTER FOR THE CREATIVE ARTS RORY T. WHITE, ROMAINE L. WHITE AND RICHARD WHITE
NEW ORLEANS CENTER FOR THE CREATIVE ARTS, ET AL.
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
J. O'Brien William David Coffey LOUISIANA ATTORNEY
GENERAL'S OFFICE Jeff Landry, Attorney General LOUISIANA
DEPARTMENT OF JUSTICE COUNSEL FOR DEFENDANTS/APPELLEES
composed of Chief Judge James F. McKay, III, Judge Paula A.
Brown, Judge Dale N. Atkins
N. Atkins, Judge
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.
AND PROCEDURAL HISTORY
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.
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.
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
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
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.
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.  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."
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. 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.
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.
injunction suit and the damages suit were consolidated on
November 17, 2017.
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. A judgment granting the exception of no
cause of action was signed on November 27,
filed a motion for devolutive appeal on December 5, 2018,
which was signed by the trial court on December 6, 2018.
March 12, 2019, this Court ordered the trial court to amend
the November 27, 2018 judgment to include the
"appropriate and necessary decretal
language." 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.
March 22, 2019, this Court issued a notice of completion of
record. This timely appeal follows.
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.
of Error No. 1: Granting of the Exception of No Cause of
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.
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.
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).
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
mandatory reporter is defined in La. Ch. C. art. 603, and
provides in pertinent part:
(17) "Mandatory reporter" is any of the following