James Lodato, III VS Kandace LeBoeuf and National Oil Well Varco, L.P.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 0151 JAMES LODATO III VERSUS KANDACE LEBOEUF AND NATIONAL OIL WELL VARCO LP Judgment Rendered September 21 2012 Appealed from the Twenty Second Judicial District Court I In and for the Parish of St Tammany State of Louisiana Suit Number 2009 14001 Honorable William J Knight Presiding Anthony J Glorioso Counsel for PlaintiffAppellant Metairie LA James Lodato III Charles A Mouton Counsel for Defendants Appellees Lafayette LA Kandace LeBoeuf and National Oil Well Varco L P BEFORE CARTER C GUIDRY AND GAIDRY JJ J GUIDRY J In this defamation action plaintiff James Lodato III appeals from a judgment of the trial court sustaining an exception raising the objection of no cause of action filed by Kandace LeBoeuf and National Oil Well Varco LP National and dismissing Lodato claims against them with prejudice For the reasons that s follow we affirm FACTS AND PROCEDURAL HISTORY James Lodato III was a sales representative employed by Saia Motor Freight Line LLC Saia As a sales representative Lodato was required to call upon corporate customers for the purpose of securing transportation services However in June 2009 Saia terminated Lodato semployment On July 1 2009 Lodato filed a petition for damages naming Kandace 0 LeBoeuf and her employer National as defendants Lodato alleged that LeBoeuf while acting in the course and scope of her employment contacted a representative of Saia sometime prior to June 5 2009 and made allegations of alleged inappropriate conduct by Lodato According to the petition such allegations were false and were made with malicious intent and resulted in Saia decision to s terminate Lodato employment s Thereafter on July 16 2010 Lodato filed a first supplemental and amending petition naming Saia Vivian Twilbeck Robert Babin and Victory as additional defendants Lodato alleged that Twilbeck was aware of the allegations that LeBoeuf communicated to Saia and Twilbeck subsequently communicated these allegations to Babin Lodato alleged that Twilbeck requested that Babin lodge a complaint against Lodato and that Babin subsequently composed a handwritten note dated June 10 2009 which Babin provided to Twilbeck Lodato alleged that the contents of the note were false and were made with malicious intent and as a result of the contents of the note Saia terminated his employment 2 Babin and Victory filed a motion for partial summary judgment asserting that Lodato cannot prove that Babin with actual malice or other fault published a false statement with defamatory words that caused Lodato damages Following a hearing on November 10 2010 the trial court passed on Babin and Victory s motions for partial summary judgment to allow for the taking of Babin and s Twilbeck depositions Thereafter on March 29 2011 Babin and Victory re urged their motions for summary judgment On May 20 2011 Lodato filed a second supplemental and amending petition naming Victoria Moorehead another employee of Saia as an additional defendant Lodato alleged that during the course of events already described Moorehead became aware of the allegations that LeBoeef communicated to Saia and contacted LeBoeuf by telephone flew to New Orleans and met with Twilbeck and Twilbeck personally visited LeBoeuf Lodato also alleged that Moorehead contacted Saia human resources representative to advise him that a complaint had s been made by Babin and also contacted Saia regional vice president seeking s authority to terminate Lodato Lodato alleged that on June 10 2009 Moorehead caused a handwritten note to be transmitted to individuals at Saia and to be made a permanent part of Lodato personnel file s Lodato alleged that Twilbeck Moorehead and Babin conspired to prepare the complaint reflected in the handwritten note dated June 10 2009 Finally Lodato alleged that the allegations made by Babin concerning his meetings with Lodato are false unsubstantiated and were made with malicious intent the handwritten note by Moorehead along with verbal and electronic communications were also false unsubstantiated and were made with malicious intent and that the combined efforts of defendants led to his wrongful discharge Following a May 25 2011 hearing on Babin and Victory motions for s summary judgment the trial court signed a judgment on June 29 2011 granting 3 summary judgment in favor of Babin and Victory and dismissing all of Lodato s claims against them with prejudice Thereafter LeBoeuf and National filed an exception of no cause of action asserting that the allegations in the second supplemental and amending petition clarify that Lodato termination was exclusively caused by the acts of Saia s employees subsequent to the initial Saa investigation into the allegations made by LeBoeuf and not by the alleged statements made by LeBoeuf Following a hearing on the exception the trial court signed a judgment sustaining the exception in favor of LeBouef and National and dismissing Lodato claims against them with s prejudice Lodato now appeals from this judgment DISCUSSION The peremptory exception raising the objection of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading Fink v Bryant 01 0987 p 3 La 11 801 So 2d 346 348349 01 28 The function of the objection of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition Fink Ol 0987 at pp 3 4 801 So 2d at 348 No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action Fink 01 0987 at p 3 801 So 2d at 349 The exception is triable on the face of the petition and for purposes of determining the issues raised in the exception the well pleaded facts in the petition must be accepted as true Fink 01 0987 at p 4 801 So 2d at 349 A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim Fink 01 0987 at p 4 801 So 2d at 349 Any doubts are resolved in favor This judgment is the subject of a separate appeal also decided this date Lodato v LeBoeuf 2012CAO150 La App 1st Cir 921 12 opinion unpublished 11 vuis 0976 of the sufficiency of the petition Van Hoose v Gra 11 p 6 La App 1 st Cir 7 70 So 3 d 1017 1021 11 The burden of demonstrating that the petition states no cause of action is on the mover Ramey v DeCa 031299 p 7 La 3 869 So 2d 114 119 ire 04 19 In reviewing the judgment of a trial court on an exception of no cause of action an appellate court conducts a de nouo review because the exception raises a question of law and the trial court decision is based only on the sufficiency of the petition s CAY of Denham Springs v Perkins 081937 p 12 La App 1st Cir 3 10 09 27 So 3d 311 321 322 writ denied 09 0871 La 5 8 So 3d 568 09 13 Defamation is a tort which involves the invasion of a person interest in his s or her reputation and good name Costello v Hardy 03 1146 p I2 864 So 2d 129 139 Four elements are necessary to establish a defamation cause of action 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 Costello 03 1146 at p 12 864 So 2d at 139 The fault requirement is often set forth in the jurisprudence as malice actual or implied Costello 03 11 at p 12 864 So 2d at 139 Thus in order to prevail on 46 a defamation claim a plaintiff must prove that the defendant with actual malice or other fault published a false statement with defamatory words which caused plaintiff damages Costello 03 1146 at p 12 864 So 2d at 139 140 If even one of the required elements of the tort is lacking the cause of action fails Costello 031146 at p 12 864 So 2d at 1 40 In the instant case Lodato alleged that sometime prior to June 5 2009 LeBoeuf contacted a Saia representative and made allegations about alleged inappropriate conduct of Lodato and that such allegations were false and were made with malicious intent According to Lodato original petition Saia decided s to terminate Lodato employment as a result of these allegations However in his s E second supplemental and amending petition Lodato alleged that the defendants Twilbeck Moorehead and Babin knowing that the allegations made by the defendant Kandace LeBoeuf weee not sufficient to cause detrimental action against the plaintiff conspired to prepare the complaint reflected in the handwritten note dated June 10 2009 Emphasis added Accordingly Lodato has admitted that LeBoeuFs allegations even if defamatory were riot sufficient to cause injury i termination of his employment with Saia See La C art 1853 e Absent an allegation of injury Lodato fails to set forth a cause of action for defamation against LeBoeuf and National and the trial court was correct to sustain LeBoeuf and National exception s Further we do not find that the trial court abused its discretion by dismissing s Lodato claims rather than providing him an opportunity to amend his petition Louisiana Code of Civil Procedure article 934 states that w the grounds of hen 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 Article 934 further provides that if the grounds of the objection cannot be removed by amendment the action shall be dismissed In the instant case Lodato amended his petition to state that LeBoeuf s allegations were not sufficient to cause detrimental action against the plaintiff Considering this admission by Lodato and the several supplemental and amending petitions already filed into the record we find do not find that the trial court abused its discretion in failing to provide Lodato with an opportunity to amend his petition CONCILUSION For the foregoing reasons we affirm the judgment of the trial court sustaining LeBoeuf and National exception raising the objection of no cause of s 6 action and dismissing Lodato claims against there with prejudice s this appeal are assessed to James Lodato Ill AFFIRMED All costs of
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