text:
    STATE of Louisiana v. Brenda Gail RAINS.
    No. 2012-K-2689.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Rains, Brenda Gail; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Grant, 35th Judicial District Court Div. O, No. 09-870; to the Court of Appeal, Third Circuit, No. KA 12-615.

Not considered. Not timely filed. See Supreme Court Rule X, § 5(a).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Damon David CALISTE.
    No. 2012-KP-1648.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Caliste, Damon David; — Defendant; Applying for Reconsideration of this court’s action dated March 1, 2013. Parish of St. Tammany, 22nd Judicial District Court, Div. G, No. 460590; to the Court of Appeal, First Circuit, No. 2012 KW 0590.

Reconsideration denied.

JOHNSON, C.J., and HUGHES, J., would grant.


text:
    STATE of Louisiana v. Richard Weyman MAFFETT.
    No. 2012-K-2464.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Maffett, Richard Weyman; — Defendant; Applying For Application for Reconsideration of this Court’s Order dated April 12, 2013, Parish of Caddo, 1st Judicial District Court Div. 1, No. 298,190; to the Court of Appeal, Second Circuit, No. 47,430-KA.

Reconsideration denied.


text:
    STATE of Louisiana v. Bobby D. HIGGINBOTHAM.
    No. 2012-K-1718.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Higginbotham, Bobby D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Tensas, 6th Judicial District Court Div. B, No. 79,152; to the Court of Appeal, Second Circuit, No 46,975-KA.

Denied.

JOHNSON, C.J., would grant.


text:
    STATE ex rel. William THURMAN, Jr. v. STATE of Louisiana.
    No. 2012-KH-2535.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Thurman Jr., William; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 71338; to the Court of Appeal, First Circuit, No. 2012 KW 1525.

Denied.


text:
    STATE of Louisiana v. Karbin D. PAUL.
    No. 2012-K-2576.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. A, No. 464-824; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1347.

Denied.

VICTORY and HUGHES, JJ„ would grant.


text:
    STATE of Louisiana v. Michael Wayne COLLINS.
    No. 2012-K-2635.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Collins, Michael Wayne; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. D, No. 295,345; to the Court of Appeal, Third Circuit, No. 12-256.

Denied.


text:
    STATE of Louisiana v. Lucien STEWART.
    No. 2012-K-2642.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re State of Louisiana; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 498^475; to the Court of Appeal, Fourth Circuit, No. 2011-KA-1216.

Denied.


text:
    STATE of Louisiana v. Christopher S. PERRY.
    No. 2012-K-2657.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Perry, Christopher Scott; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. 126805; to the Court of Appeal, Third Circuit, No. 12-298.

Denied.


text:
    STATE of Louisiana v. Orlando Maurice GLOVER.
    No. 2012-K-2667.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Glover, Orlando M.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 3, No. 262,659; to the Court of Appeal, Second Circuit, No. 47,-311-KA.

Denied.


text:
    STATE of Louisiana v. Kendall D. CLOUD.
    No. 2012-KO-2690.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Cloud, Kendall D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. A, No. 507,823; to the Court of Appeal, First Circuit, No. 2012 KA 0647.

Denied.

HUGHES, J., recused.


text:
    STATE of Louisiana v. Quierza LEWIS.
    No. 2012-KO-2723.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Lewis, Quierza; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. F, No. 73,177; to the Court of Appeal, Second Circuit, No. 47,-534-KA.

Denied.


text:
    STATE ex rel. Yilver M. PONCE v. STATE of Louisiana.
    No. 2012-KH-2724.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Ponce, Yilver M.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 444364; to the Court of Appeal, First Circuit, No. 2012 KW 1524.

Denied.

HUGHES, J., recused.


text:
    STATE ex rel. Brandon STEVENSON v. STATE of Louisiana.
    No. 2012-KH-2734.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Stevenson, Brandon; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 01-1062; to the Court of Appeal, Fifth Circuit, No 12-KH-794.

Denied.


text:
    STATE ex rel. Quarion J. JENKINS v. STATE of Louisiana.
    No. 2012-KH-2735.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Jenkins, Quarion J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 07-08-0874; to the Court of Appeal, First Circuit, No. 2012 KW 1340.

Denied.


text:
    STATE ex rel. Marcus WILHITE v. STATE of Louisiana.
    No. 2012-KH-2736.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Wilhite, Marcus; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 99-F-000910; to the Court of Appeal, Second Circuit, No. 48,015-KH.

Denied.


text:
    STATE ex rel. Ron Kirk THOMPSON v. STATE of Louisiana.
    No. 2012-KH-2751.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Thompson, Ron Kirk; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Madison, 6th Judicial District Court Div. A, No. 476,624; to the Court of Appeal, Second Circuit, No. 47,-933-KH.

Denied.


text:
    STATE ex rel. Emmanuel Joseph LOWE v. STATE of Louisiana.
    No. 2013-KH-0025.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Lowe, Emmanuel Joseph; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 02-06-0301; to the Court of Appeal, First Circuit, No. 2012 KW 1487.

Denied.

HUGHES, J„ recused.


text:
    STATE ex rel. Dane KOEPP v. STATE of Louisiana.
    No. 2013-KH-0026.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Koepp, Dane; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 466286; to the Court of Appeal, First Circuit, No. 2012 KW 1606.

Denied.


text:
    STATE ex rel. Wesley DYSON v. STATE of Louisiana.
    No. 2013-KH-0034.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Dyson, Wesley; — Plaintiff; Applying For, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 09-88-0894; to the Court of Appeal, First Circuit, No. 2012 KW 1629.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.

WEIMER, J., recused.


text:
    STATE ex rel. Herbert BUTLER v. STATE of Louisiana.
    No. 2013-KH-0035.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Butler, Herbert; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 05-88-1284; to the Court of Appeal, First Circuit, No. 2012 KW1664.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE of Louisiana v. Shane WELCH.
    No. 2013-K-0046.
    Supreme Court of Louisiana.
    May 24, 2013.
   In re Welch, Shane; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. CR125484; to the Court of Appeal, Third Circuit, No. 12-705.

Denied.


author: DANIEL L. DYSART, Judge.

text:
    Karlton KIRKSEY v. The NEW ORLEANS JAZZ & HERITAGE FOUNDATION, INC. & ABC Insurance Company.
    No. 2012-CA-1351.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 27, 2013.
    See also 40 So.3d 394 and 104 So.3d 714.

      Jerome J. Pellerin, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Randall Alan Smith, J. Geoffrey Orms-by, Sara E. Porter, Smith & Fawer, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

|, This appeal is taken from a judgment granting a Special Motion to Strike and a Peremptory Exception of No Cause of Action in favor of the New Orleans Jazz & Heritage Foundation, Inc. (hereinafter “Foundation”). For the following reasons, we affirm.

This matter has been before this Court previously wherein this Court reversed a judgment finding Kirksey personally liable for amounts owed to the Foundation, but affirmed the remainder of the judgment finding Kirksey Enterprises, Inc., liable for monies owed to the Foundation. New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, writ denied 10-1475 (La.10/1/10), 45 So.3d 1100.

Following rendition of the above opinion, the New Orleans Jazz & Heritage Foundation, Inc., filed a petition to enforce the judgment. Kirksey filed an Exception of Res Judicata, which was maintained by the trial court, but reversed by this Court. See New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 12-202 (La.App. 4 Cir. 11/30/12), 104 So.3d 714. An application for rehearing was denied, and no writ was taken to the Supreme Court.

The instant lawsuit was filed by Kirksey in September 2011, alleging that the Foundation was liable to him for defamation, false light invasion of privacy, and tortious attempt to collect a disputed debt. The basis of the allegations is that the Foundation pleaded in the initial lawsuit that Kirksey misappropriated funds which were owed to the Foundation. Kirksey further alleges that the Foundation published these defamatory accusations to its board members, and released the information to the Times-Picayune for publication. Kirk-sey argues that because this Court did not find that funds were misappropriated, either by him personally or by his closely-held corporation, the allegations made by the Foundation were malicious, false and defamatory.

In response to the petition, the Foundation filed a Special Motion to Strike pursuant to La. Code Civ. Proc. art. 971 and an Exception of No Cause of Action. The trial court granted both the motion and exception. Further, upon granting the Special Motion to Strike, the trial court ordered the Foundation to file a Rule to Show Cause to tax reasonable attorney fees and costs in bringing the motion.

Following a hearing on the Foundation’s motion to tax costs, the trial court granted the motion and awarded the Foundation $7,903.09 in attorney fees, plus interest.

Kirksey has appealed both judgments.

IsDISCUSSION:

The special motion to strike and exception of no cause of action are inextricably linked, i.e., once the trial court granted the motion to strike, the causes of action alleged by Kirksey ceased to exist making it impossible for Kirksey to establish a likelihood of success on the merits of any of his claims. Nonetheless, we will discuss the motion and exception separately.

A. Special Motion to Strike:

Louisiana Code of Civil Procedure art. 971 provides in part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
L(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Because the grant of a special motion to strike involves a question of law, an appellate court conducts a de novo review. Alexander v. Centanni, 11-0783, p. 4 (La.App. 4 Cir. 11/16/11), 80 So.3d 590, 592.

The Louisiana legislature declared it to be in the best interest of the public “to encourage continued participation in matters of public significance.” Thinkstream, Inc. v. Rubin, 06-1595 (La.App. 1 Cir. 9/26/07), 971 So.2d 1092, 1100. The legislature intended the special motion to strike to be utilized in screening out “mer-itless claims pursued to chill one’s constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press.” Melius v. Keiffer, 07-0189, p. 2 (La.App. 4 Cir. 3/12/08), 980 So.2d 167, 170, citing Lee v. Pennington, 02-0381, p. 4 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041. The courts have determined that La.Code Civ. Proc. art. 971 should be construed broadly to satisfy the intent of the legislature. Darden v. Smith, 03-1144 (La.App. 3 Cir. 6/30/04), 879 So.2d 390, 396; Davis v. Benton, 03-0851 (La.App. 1 Cir. 2/23/04), 874 So.2d 185, 190.

| BThe burden of proof initially lies with the party bringing the motion to strike to prove.that “the cause of action arises from an act in the exercise of his right of free speech regarding a public issue.” Melius, 07-0189, p. 3, 980 So.2d at 171, citing Aymond v. Dupree, 05-1248, p. 7 (La.App. 3 Cir. 4/12/06), 928 So.2d 721, 727. Once the mover meets his burden, the plaintiff must demonstrate a probability of success on the claim. Id. The trial court must examine the pleadings and supporting and opposing affidavits to determine whether the plaintiff has met his burden. La. Code Civ. Proc. art. 971 A(2).

In his petition, Kirksey claimed he was defamed on three specific occasions: 1) when he was accused in the underlying lawsuit of misappropriating, concealing, converting and/or conspiring to misappropriate certain rebates due the Foundation from ticket sales, and for breaching a fiduciary duty; 2) when certain Foundation board members informed the Times-Picayune that the Foundation was suing Kirksey for the above torts; and, 3) when certain Foundation board members informed other board members about the alleged misappropriation of funds.

The Foundation filed the motion to strike asserting that it was exercising its right to free speech in connection with a public issue. La. Code Civ. Proc. art. 971 A(l). The Foundation argues that it met its burden by showing that the acts, which form the basis of Kirksey’s cause of action, are the allegations contained the Foundation’s petition. The Foundation further argues that it only need prove that its actions involved the type of public issue that La. Code Civ. Proc. art. 971 is intended to protect. We agree.

The filing of the lawsuit against Kirksey and the reporting of that fact are acts “in furtherance of a person’s right to petition or free speech,” which includes “any written or oral statement or writing made in connection with an issue under Lreview by a legislative, executive or judicial body or any other official body authorized by law.” La. Code Civ. Proc. art. 971 F(l)(b).

Kirksey argues that the lawsuit filed by the Foundation was not of public concern because the dispute was between two private entities. This argument fails.

In Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), the United States Supreme Court described speech on matters of public concern as speech “relating to any matter of political, social, or other concern to the community.” To determine if speech is a matter of public concern, the court must determine the content, form, and context of a given statement, as revealed by the entire record. Id., 461 U.S. at 147-48, 103 S.Ct. at 1690. We find, as did the trial court, that the underlying lawsuit involves a matter of public concern as the Jazz Festival is one of the premier entertainment events each year in the City of New Orleans, contributing millions of dollars eaeh year to the City’s economy. Contra, Lyons v. Knight, 10-1470 (La.App. 3d Cir. 5/11/11), 65 So.3d 257 (case involving a business relationship between a private citizen and a private business corporation).

Once the Foundation met its burden, the burden shifted to Kirksey to establish the probability of success on each and every element of his defamation claim and false light invasion of privacy claim. La. Code Civ. Proc. art. 971 A(3).

Through its exception of no cause of action, the Foundation confirmed that Kirksey cannot establish a likelihood of success on the merits of any of his claims. The trial court examined “the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” La. Code Civ. Proc. art. 971 A(2).

|7B. Exception of No Cause of Action:

The exception of no cause of action serves to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged. Jenkins v. Gray Ins. Co., 11-0035, p. 3 (La.App. 4 Cir. 7/6/11), 67 So.3d 707, 709. The pertinent inquiry is whether, in a light most favorable to the plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. La. Code Civ. Proc. arts. 927, 931; NOLA 180 v. Harrah’s Operating Co., Inc., 12-0072, p. 3 (La.App. 4 Cir. 5/16/12), 94 So.3d 886, 888, citing Mobile-One Auto Sound, Inc. v. Whitney Nat’l Bank, 2011-0535, p. 4, 78 So.3d at 810. The burden of showing that the plaintiff has not stated a cause of action is upon the exceptor. NOLA 180, supra, citing City of New Orleans v. Bd. of Directors of Louisiana State Museum, 98-1170, p. 9 (La.3/2/99), 739 So.2d 748, 755. The exception is triable on the face of the petition, with the trial court presuming that all well-pleaded facts in the petition are true.

The review of a peremptory exception of no cause of action is de novo. In other words, the appellate court uses the same standards as the trial court to review the petition. See. e.g., Meckstroth v. Louisiana Dept. Of Transp. and Development, 2007-0236, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 490, 492, citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235-36 (La.1993).

A plaintiff alleging defamation “must set forth in the petition with reasonable specificity the defamatory statements allegedly published by the defendant.” Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706, 713.

1) Defamation claim:

A plaintiff must satisfy five elements to carry the burden of proving defamation: 1) defamatory words; 2) unprivileged publication; 3) falsity; 4) malice 1 factual or implied); and 5) injury. Navis v. Times-Picayune Publishing Corp., 92-2656 (La.App. 4 Cir. 1/27/94), 631 So.2d 1338, 1339. The Foundation argues that because Kirksey did not satisfy even one, much less all, of the elements, he has failed to state a cause of action. Therefore, he also cannot satisfy his burden of proving a probability of success on the claim, a requirement pursuant to La. Civ.Code art. 971.

a) Defamatory words:

Our jurisprudence has established two categories of defamatory words: 1) those that are defamatory per se; and 2) those that are susceptible of a defamatory meaning. Costello v. Hardy, 03-1146, p. 13 (La.1/21/04), 864 So.2d 129, 140.

The first category, words that are defamatory per se, is described as words which expressly or implicitly accuse another of criminal conduct, or which, by their very nature, tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances. Costello, supra, citing Kosmitis v. Bailey, 28,585 (La.App. 2 Cir. 12/20/96), 685 So.2d 1177, 1180.

The words contained in the Foundation’s petition, which Kirksey complains are defamatory, are words such as misappropriation, conversion, and civil conspiracy, all of which are words used commonly in the area of civil tort litigation. We do not find these words, used in this context, are defamatory per se.

We also do not find that the words used in the Foundation’s petition constitute a defamatory meaning by innuendo or implication. These statements “which carry a defamatory implication can only be actionable if the statements regard a private individual and private affairs.” Fitzgerald, 737 So.2d at 717 (emphasis in original); see also Schaefer v. Lynch, 406 So.2d 185, 188 (La.1981). As stated above, matters involving the Jazz Fest are of great public concern. Thus, | flthere was no defamation by implication or innuendo in the filing of the initial lawsuit against Kirksey.

b) Unpublished publication:

The second element which must be proved to maintain an action for defamation is to show that the communication was not protected by a privilege, either absolute or qualified. Doe v. Grant, 01-0175 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, 416.

Kirksey cites Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (La.1969) for the proposition that La. R.S. 14:49 does not apply in the civil context. However, subsequent jurisprudence has held differently, the latest pronouncement by the Supreme Court being made in Costello, supra. The Court specifically stated that “statements made in the course of a judicial proceeding are subject to a qualified privilege if the statements are material to the proceeding, and are made with probable cause and without malice.” 864 So.2d at 142, fn. 13. The allegations made in the Foundation’s petition meet these criteria. It was necessary for the Foundation to make the allegations against Kirksey to sustain its cause of action for misappropriation and conversion. The fact that this Court found liability only on the part of Kirksey’s closely-held corporation for breach of contract is of no moment.

c) Falsity:

Perhaps the most important element not proven by Kirksey is that the statements made in the petition were false. In the underlying lawsuit, the 1 inFoundation merely had to prove by a preponderance of the evidence that Kirk-sey misappropriated funds belonging to the Foundation. This Court’s finding that Kirksey personally did not misappropriate funds does not make those statements false. The ultimate ruling finding that Kirksey’s close-held corporation breached its contract with the Foundation only means that the allegations of personal liability by Kirksey were not legally sustainable.

d) Malice:

Kirksey must prove that the Foundation acted with malice. To do so, Kirksey must prove that the Foundation knew the statements made in its petition were false and that the use of those words would defame Kirksey; that it acted in reckless disregard of these matters; or that it acted negligently in failing to ascertain them. Kennedy v. Sheriff of East Baton Rouge, 05-1418, p. 15 (La.7/10/06), 935 So.2d 669, 681, citing Restatement (Second) of Torts, § 580B. Kirksey has not done so.

Kirksey claims that the Foundation did not meet its burden of proof at trial because it did not file an answer to his petition, thereby making Kirksey’s allegations uncontroverted. However, La.Code Civ. Proc. art. 1001 allows a defendant to file an exception, and to have it considered, prior to filing an answer.

The Foundation filed the petition in the underlying lawsuit making allegations of misappropriation and/or conversion based on the facts as it knew them to be true, i.e., revenues the Foundation believed were owed to it by Kirksey had never been received. These allegations were ultimately determined to be factual by this Court in the first appeal. Although this Court found the issue of |nliability to be based on breach of contract instead of personal liability, that finding does not change the facts—Kirksey owed the Foundation money.

It cannot therefor be said that the Foundation acted with malice.

e)Injury:

The last element to be satisfied is proof of injury. Kirksey claimed in his petition that he suffered injury to his professional reputation, personal humiliation, embarrassment, mental anguish, loss of employment and economic loss. The record reveals no evidence to substantiate any of these claims as required. Costello v. Hardy, 03-1146, p. 14, 864 So.2d at 141. The only “evidence” offered by Kirksey is his own self-serving affidavit wherein he restates the allegations of his petition.

We conclude that Kirksey has not satisfied even one element necessary to prove defamation. There is no merit to his assignments of error in this regard.

2) False light invasion of privacy claim:

As to false light invasion of privacy, Kirksey must prove that there existed a privacy interest, falsity and unreasonable conduct. Stern v. Doe, 01-0914, p. 5 (La.App. 4 Cir. 12/27/01), 806 So.2d 98, 101, citing Perere v. Louisiana Television Broadcasting Corp., 00-1656 (La.App. 1 Cir. 9/28/01), 812 So.2d 673, 376.

Our analysis of Kirksey’s defamation claim thoroughly discusses whether the allegations of Kirksey’s petition satisfy the above elements; we have concluded they do not. Therefore, Kirksey likewise cannot carry his burden to prove false light invasion of privacy because he has not stated any facts to corroborate his claim.

|123) Tortious attempt to collect debt claim:

Kirksey also claims that the Foundation’s attempts to collect the debt owed by him (or his closely-held corporation as determined in this Court’s prior opinion), constitutes a tort. The Foundation challenged those claims in its exception of no cause of action, which the trial court granted. The Foundation did not employ any methods normally associated with a tor-tious attempt to collect a debt, such as contacting the debtor’s employer. Rather, Kirksey’s employer became aware of the lawsuit against Kirksey by the Foundation and decided to fire him. There is no proof offered that the lawsuit to collect the debt influenced Kirksey’s employer to fire him.

C. Attorneys Fees and Costs:

Attorney’s fees were prayed for and awarded by the trial court in connection with the special motion to strike. La. Code Civ. Proc. art. 971 clearly provides that “a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs ” La. Code Civ. Proc. art. 971 B. Because we find the Foundation prevailed in the suit below, the award of attorney fees and costs was proper.

CONCLUSION:

Based on our review of the record as detailed above, we affirm the rulings of the trial court granting the special motion to strike and the exception of no cause of action filed by the Foundation. All costs of this appeal are assessed to Kirksey.

AFFIRMED

      . La. R.S. 14:49 is a statute contained in the Louisiana Criminal Code, which states that "a qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false,” in the context of a publication or expression made by a party or attorney in a judicial proceeding.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Lisa MULVIHILL v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2.
    No. 12-CA-432.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      John B. Fox, Attorney at Law, New Orleans, LA, for PlaintiffiAppellant.
    Jacqueline G. Griffith, Carl L. Aspelund, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

12Claimant, Lisa Mulvihill, appeals the denial of her claims for workers’ compensation benefits, penalties, and attorney fees. Claimant argues the trial court erred by failing to: award her penalties because of defendant’s underpayment of indemnity benefits; award her penalties for defendant’s failure to timely approve two weeks of prescribed physical therapy; award her penalties for certain late payments of indemnity benefits; and, order reimbursement of certain out-of-pocket medical expenses. For the following reasons, we affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On November 13, 2008, claimant suffered a fall during the course and scope of her employment with the defendant, Jefferson Parish Hospital Service District No. 2. The parties do not dispute that this fall injured claimant’s right knee, entitling her to workers’ compensation indemnity and medical benefits arising from that knee injury. The parties dispute however whether claimant’s subsequent left knee pain and pathology was caused by her November 14, 2008 fall.

|aOn February 3, 2010, claimant filed the disputed claim for workers’ compensation giving rise to this appeal. In that claim, claimant alleged that she was due: reimbursement for out-of-pocket medical expenses to treat her left knee injury; attorney fees and penalties for defendant’s underpayment and late payment of her compensation benefits; and for defendant’s failure to authorize her physical therapy. A trial on the merits was held on August 3, 2011. At the workers’ compensation trial giving rise to this appeal, the following evidence was introduced.

Claimant’s treating physician, Dr. Jay Binder, testified that claimant told him that, starting in July of 2009, she was having pain in her left knee. This pain continued and worsened from that point. In October of 2010, claimant had an arthroscopic surgery on her left knee. That surgery consisted of a synovectomy with a partial lateral meniscectomy and thermal treatment of an anterior cruciate ligament injury.

Dr. Binder further testified that he believed claimant’s left knee injury was caused or exacerbated by claimant’s “somewhat incomplete” “stop-and-go” rehabilitation treatment of her right knee, by falls caused by claimant’s right knee injury, or by both those factors combined.

On March 16, 2011, Dr. Gordon P. Nu-tik, an orthopedic surgeon chosen by defendant, examined claimant in order to render a second medical opinion on the cause of claimant’s left knee injury. After examining claimant and her medical records, Dr. Nutik opined that claimant’s left knee injury was not directly caused by claimant’s November 13, 2008 fall.

On June 27, 2011, Dr. Richard Meyer, a court-appointed independent medical examiner (IME), examined claimant. After his review of claimant’s 14records, Dr. Meyer opined, “there is no relationship based on [my] review of the records between her work injury of November 13, 2008, and the pathology that she had in the left knee or any pathology that she may currently have.”

The trial court rendered judgment denying each of claimant’s claims on January 11, 2012. This appeal arises from that judgment.

DISCUSSION

First Assignment

In her first assignment, claimant argues the trial court erred in failing to award penalties and attorney fees for defendant’s underpayment of her indemnity benefits. In its judgment, the trial court refused to award penalties and attorney fees because defendant caught its underpayment and immediately corrected it before claimant became aware of the error. Claimant argues that the trial court erred because the law mandates that she receive penalties and attorney fees for the underpayment. While we applaud the employer for finding its own error and correcting it, we agree with claimant — the law in this instance mandates penalties and attorney fees.

The penalties and attorney fees claimant seeks are provided for in La. R.S. 23:1201(F) which states,

Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall |Bbe res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

(emphasis added).

These penalty and attorney fee provisions are penal in nature and are therefore strictly construed. Robichaux v. Terrebonne Parish Sch. Bd., 426 So.2d 241, 245 (La.App. 1 Cir.1983). While the hearing officer’s decision to award or refuse penalties and attorney fees is a matter of great discretion, the plain text of La. R.S. 23:1201(F) mandates the penalties and attorney fees against a defendant when it fails to pay in accordance with this section of law unless the defendant either reasonably controverted the payments or had no control over the payments not being made. Barton v. Wausau Ins. Co., 545 So.2d 1248, 1254 (La.App. 2 Cir.1989); La. R.S. 23:1201(F).

In Barton, penalties assessed under La. R.S. 23:1202(E) against an employer’s workers’ compensation insurer were upheld. There, the claimant usually worked overtime and was due increased benefits due to that fact. The defendant however paid claimant benefits based only on a 40-hour work week.

In Barton, the defendant argued that it should not be liable for penalties because the claimant provided the information that led to the underpayment. The defendant pointed out that claimant’s own “Statement of Facts” listed only 40 hours per week of work and that therefore, the claimant’s underpayment was his |fiown fault. The trial court recognized that the claimant had written only his regular time work, but also found that the statement was,

completed in two different handwritings and inks and the portions for total weekly and monthly wage were not filled by [the claimant]. Rather, [the claimant] was only asked to fill in the number of hours worked per day and number of days worked per week. [The claimant] was not asked about overtime. Furthermore, [the claimant] testified this was the only form he received.

Id. at 1254. After finding that the defendant’s underpayments were not the claimant’s own fault, the court in Barton went on to state that,

[a]n accurate account of [the claimant’s] true earnings [was] available from [the employer’s] records. Mr. Novak, [the defendant’s] senior claims representative, said check stubs were the best source of this information. [The defendant] could have obtained the correct figures from [the employer] since it did not elicit complete data from [the claimant] himself. Mr. Novak admitted that he did not “follow up” on the Statement until 1987. The [trial] court concluded the evidence showed “less than thoroughness and attention to detail” in processing the claim. This does not appear plainly wrong.
Furthermore, we find nothing to indicate that nonpayment resulted from conditions beyond the [defendant] insurer’s control. At trial Mr. Novak admitted not knowing who handled the correspondence at various times, whether it was the New Orleans office or the West Monroe office. Perhaps if one office or agent had worked the entire case, the confusion would not have arisen. An insurer, however, cannot urge its own poor clerical work to escape penalties for nonpayment. LaHaye v. Westmoreland Cas. Co., 509 So.2d 748 (La.App. 3d Cir.1987). There is also no indication that anyone “reasonably controverted” the correct wage. [The defendant] simply gathered incomplete data in preparing [the claimant’s] claim. The statutory defenses to penalties are inapplicable.

Id.

Defendant argues that Barton “is distinguishable [from the instant case] because in [Barton ], the error came to the attention of the [e]mployer during the course and scope of the discovery process, which, of course, would have been initiated by the attorney for the [e]mployee. Here, there is no such proof.” While this is technically correct, it is incomplete. In Barton, the defendant who had been paying the claimant’s workers’ compensation benefits was not the claimant’s |7empIoyer — it was the employer’s insurer. When the employer answered the claimant’s interrogatories, the defendant discovered the underpayment and corrected it. While the defendant could have found an accurate account of the claimant’s earnings from the employer’s records, the defendant had no actual knowledge of the accurate amounts of the claimant’s earnings. The defendant was assessed penalties merely because it failed to pay the claimant the full amount of his benefits without a statutory excuse.

Defendant further argues that it should not be liable for penalties because it caught and corrected its underpayment itself, and there is no evidence that claimant caused this underpayment to be discovered or corrected. For defendant’s argument to be persuasive, this Court would have to read the penalty provision of La. R.S. 28:1202(F) as permissive. Defendant, through the cases it cites, implicitly argues that penalties should not be assessed against it because it did not arbitrarily and capriciously underpay the claimant.

In support of this argument, defendant cites Comeaux v. Sam Broussard, 94-1631 (La.App. 5 Cir. 05/31/95), 657 So.2d 449. In Comeaux, the employer underpaid the claimant’s disability benefits by $36.73 for each of the forty-seven weeks that it paid the claimant’s compensation benefits. As soon as this underpayment was brought to the employer’s attention however, it sent a lump-sum payment for the amount owed to the claimant. There, this Court reasoned La. R.S. 23:1201.2 only held an employer liable when it arbitrarily and capriciously underpaid a claimant. We found that the employer’s underpayment was not arbitrary and capricious and therefore the employer was not liable for penalties and attorney’s fees.

Comeaux, however, is not relevant to this appeal because it was decided using the arbitrary and capricious standard imposed by La. R.S. 23:1201.2, a law |8that was repealed before the events now in question by La. Acts 2003, No. 1204, § 2. That act amended and reenacted La. R.S. 23:1201(F) leaving intact its mandatory penalties through its use of the word “shall.” That same act also enacted a new subsection, La. R.S. 23:1201(1), which subjected employers to penalties if they discontinued benefits in a way that was found to be “arbitrary, capricious, or without probable cause.”

Under the plain text of the law, a claimant seeking penalties and attorney fees under La. R.S. 23:1201(F) does not need to prove that payments due were arbitrarily or capriciously underpaid. Such penalties are mandated when a party fails to pay in accordance with La. R.S. 23:1201 without a valid excuse. Therefore, we find that the trial court erred by not imposing mandatory penalties and attorney fees on defendant for its unexcused underpayment of benefits due to claimant.

Second Assignment

In her second assignment of error, claimant argues that the trial court erred in failing to award penalties for defendant’s failure ’ to timely approve the last two weeks of physical therapy prescribed by claimant’s treating orthopedist. For this assignment, claimant again argues that La. R.S. 23:1201(F) made penalties against defendant mandatory.

IflOn November 10, 2009, Dr. Jay Binder, claimant’s treating orthopedist, prescribed claimant four weeks of physical therapy. Bridgette Preston, a claims adjuster, was responsible for approving this treatment on behalf of defendant. Relying on a “utilization review” she had received, Ms. Preston approved only the first two weeks of the physical therapy. Claimant did not appeal the decision and completed her two weeks of authorized physical therapy on November 30, 2009. Two weeks later, on December 14, 2009, Dr. Binder again requested authorization for physical therapy for claimant. The trial court stated in its judgment,

Ms. Preston at that point did not deny the request. She did not tell Dr. Binder’s office that request had already been denied. She instead simply requested that they contact the medical review agency and explain to them why the additional two weeks were needed. Apparently Dr. Binder’s office did not follow up because when Ms. Preston was reviewing the file about two weeks later she discovered that there had been no therapy. Therefore, she followed up with Dr. Binder’s office and this time the procedure was followed. They contacted the medical review agency and the treatment was approved.
In summary, [e]mployer did not deny treatment. They simply asked the doctor to follow procedure which for some reason did not happen.

Claimant did not resume her physical therapy until January 6, 2009.

Defendant argues that its actions were proper under the statute because it was allowed to rely on the utilization review process in determining whether it should authorize claimant’s treatment. Defendant cites La. R.S. 23:1142(B)(b) for the proposition that the legislature has now recognized that defendant’s reliance of the utilization review, conducted by a doctor who did not examine claimant, was proper. That legislation states in applicable part,

(b)(i) The payor may contract with a utilization review company to assist the payor in determining if the request for nonemergency diagnostic testing or treatment, in an amount which exceeds seven hundred fifty dollars, is a medical necessity as provided pursuant to this Chapter.
| in(ii) A medical necessity determination by a utilization review company and the payor’s consent to authorize the requested nonemergency diagnostic testing and treatment shall require only a review of the claimant’s medical records and shall not require an examination of the employee.

La. R.S. 23:1142(B) (emphasis added).

Defendant correctly argues that it was allowed to use a utilization review company which did not have a doctor personally examine the claimant. Indeed, this Court finds no error in Ms. Preston initially approving only the first two weeks of claimant’s requested physical therapy. The statute’s language also makes it clear however that a utilization review can only “assist” in defendant’s own determination of whether it should authorize treatment.

Here, defendant shirked its own responsibility to authorize, or reasonably controvert, claimant’s request for two additional weeks of physical therapy. After claimant’s first two weeks of physical therapy, Dr. Binder called Ms. Preston requesting two additional weeks. At that point, it was incumbent on Ms. Preston to approve or refuse Dr. Binder’s request, with or without the assistance of a utilization review at her discretion. However, instead of approving or refusing the request, Ms. Preston imposed an additional procedural and administrative burden on Dr. Binder by asking him to contact defendant’s utilization review board. Dr. Binder did not take this additional step and two weeks passed without any action. After this delay, Ms. Preston, for reasons she could not recall in testimony, called her utilization review board for its opinion and then authorized claimant’s additional physical therapy.

There is no evidence in the record that it was defendant’s procedural policy for claimant, or her doctor, to interact directly with the utilization review board. Further, even if such policy existed, it is defendant’s own responsibility to authorize or refuse requests for medical treatment. Utilization review boards areJjjallowed for the benefit of employers. If an employer wishes to take advantage of a utilization review board, it is the employer’s duty to use and communicate with that board. In this case, we find that defendant failed to authorize medical treatment by refusing to act until Dr. Binder interacted with the utilization review board. The law mandates that defendant be assessed penalties and attorney fees because of this failure.

Third Assignment

Next, claimant argues that the trial court erred when it failed to award her penalties for certain late payments of indemnity benefits by defendant. Claimant asserts that, under the due dates set by La. R.S. 23:1201(B), defendant’s payments to her for pay periods between March 10, 2009 and March 30, 2010 were between one and six days late. Claimant reasons that her first payment was due on the fourteenth day after her employer had notice of her injury and that subsequent payments were then due to her at the interval of every fourteenth day after that day. Defendant argues that its payments were made at the proper time because it paid claimant her benefits on the same intervals on which it paid its other employees.

The award of penalties for late payments is governed by La. R.S. 23:1201 which states in applicable part,

(A)(1) Payments of compensation under this Chapter shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident; however, when the employee is not living at the place where the wages were paid, or is absent therefrom, such payments shall be made by mail, upon the employee giving to the employer a sufficient mailing address. However, a longer interval, not to exceed one month, may be substituted by agreement without approval of the director. An interval of more than one month must be approved by the director.
(B) The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has | ^knowledge of the injury or death, on which date all such compensation then due shall be paid.

La. R.S. 23:1201 (emphasis added).

These penalty and attorney fee provisions are penal in nature and therefore strictly construed; such awards are warranted only when the facts negate probable cause for nonpayment. Robichaux v. Terrebonne Parish Sch. Bd., supra.

This statute proscribes that an employer pay an employee’s workers’ compensation benefits at the time and place where it typical pays its employees’ wages. It does not mandate, as claimant contends, that the employer begin a series of payment dates exclusive to an individual injured worker.

Further, the statute’s language requiring claimants to be paid “as near as possible” to when claimants were paid their wages before their accidents builds in flexibility for employers. For this Court to require idiosyncratic payments to each claimant would unduly complicate the employer’s payroll and read this flexibility out of the statute’s language.

For these reasons, we find this assignment to be without merit.

Fourth Assignment

In her final assignment of error, claimant argues that the trial court erred in failing to order that she be reimbursed for her out-of-pocket expenses for her left knee injury. The trial court refused to grant claimant these expenses because it found that claimant’s left knee injury was not caused by her November 18, 2008 fall or any other compensable injury.

An appellate court’s review of the workers’ compensation judge’s findings of fact is governed by the manifest error or clearly wrong standard and will not be disturbed absent such a finding. Barbarin v. TLC Home Health, 02-1054 (La.App. 5 Cir. 4/29/03), 845 So.2d 1199, 1202; Chaisson v. Cajun Bag Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Barbarin, 845 So.2d at 1202; Chaisson, 708 So.2d at 380. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Barbarin, 845 So.2d at 1202; Chaisson, 708 So.2d at 381. Thus, if the fact finder’s findings are reasonable in light of the record, the court of appeal may not reverse or modify the judgment. Barbarin, 845 So.2d at 1202; Chaisson, 708 So.2d at 381.

To make its determination that claimant’s left knee injury was not compensable under workers’ compensation law, the trial court carefully examined the credibility of differing expert opinions. It considered the testimony of Dr. Binder, claimant’s own treating physician. He opined that claimant’s November 13, 2008 fall caused claimant’s later left knee injury. The trial court also considered the opinions of defendant’s expert, Dr. Nutik, and the IME, Dr. Meyer. Both of these experts opined that claimant’s left knee injury was not caused by her November 13, 2008 fall.

Further, this Court notes that Dr. Meyer was the IME appointed by the trial court. La. R.S. 23:1123 provides for the appointment of an IME when, as here, there is a conflict in the medical evidence. The statute provides that the IME’s report shall be prima facie evidence of the facts therein stated. As the court in Bell v. Mid City Printers, Inc., explained,

The courts have interpreted La. R.S. 23:1123 to mean that an IME’s medical conclusions should be given significant weight because the IME is an objective witness. Nevertheless, the opinion of the IME is not conclusive, and the trial judge must evaluate all of the evidence presented in making a decision as to the claimant’s condition. The weight given to the testimony of an IME can be lesser or greater depending on the qualifications or expertise of the physician, the type 114of examination he performs, his opportunity to observe the patient, his review of other physicians’ examinations and tests, and any other relevant factors.

2010-0818 (La.App. 4 Cir. 12/22/10), 54 So.3d 1226, 1234 (citations omitted).

Upon review of the record, and considering the significant weight afforded Dr. Meyer as an IME, this Court finds that the trial court’s judgment was reasonable. Therefore, claimant’s assignment that the trial court erred by not awarding her out-of-pocket expenses arising from the treatment of her left knee is without merit.

CONCLUSION

Considering the above findings, we reverse the trial court’s judgment in so far as it failed to award attorney fees and penalties to claimant for defendant’s failure to pay the full amount of compensation benefits it owed and for defendant’s failure to authorize additional physical therapy for claimant after her doctor requested such. We affirm the trial court’s judgment in all other respects and remand this case for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

      . This testimony was given in a deposition before trial.

      . Before the 2003 amendments to the Workers’ Compensation law, the Louisiana Supreme Court clarified that La. R.S. 23:1201 solely addressed the timeliness of payments. In Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 44, the Court stated, "[t]he 1983 revisions also amended La. [R.S.] 23:1201.2 to require an employer or insurer to pay the amount of any claim due under the Act within sixty days of written notice and to pay all reasonable attorney’s fees for the prosecution and collection of such claim if the employer's or insurer’s failure to pay timely was arbitrary, capricious or without probable cause. Section 1201.2, as amended in 1983, further provided that an employer or insurer who discontinues payment of claims "due and arising” under the Act shall be subject to payment of all reasonable attorney’s fees for the prosecution and collection of such claims if the discontinuance was arbitrary, capricious or without probable cause_ Since this 1995 amendment, Section 1201.2 now addresses solely the discontinuance of payment of claims, while Section 1201 now addresses solely the timeliness of commencement of benefit payments and timeliness of continued payments.” (emphasis added).

      . La. R.S. 23:1142(B)(b), enacted in 2012, went into effect after the events at issue in this appeal. Therefore, this legislation is persuasive, but not governing.


author: COOKS, Judge.

text:
    Roland Douglas WALET, Henry Walet, Jr. and Margaret Walet v. SOUTHERN THEATRES FAMILY HOLDING, LLC, Southern Theatres, LLC, David Lacombe, Deni Durousseau and YouTube, LLC.
    Nos. 12-751, 12-516.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2013.

      Lawrence N. Curtis, Michael Scott Harper, Lafayette, LA, for Plaintiffs/Appellants, Roland Douglas Walet, Henry Wal-et, Jr. and Margaret Walet.
    Maria Fabre Manuel, Onebane Law Firm, Lafayette, LA, for Defendants/Ap-pellees, Southern Theatres Family Holding, LLC and Southern Theatres, LLC.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   COOKS, Judge.

1 .FACTS AND PROCEDURAL HISTORY

On December 21, 2009, Plaintiffs, Roland Walet and his parents Henry Walet, Jr. and Margaret Walet, filed suit against Southern Theatres Family Holding, LLC, Southern Theatres, LLC, David Lacombe, Deni Durousseau and YouTube, LLC. Plaintiffs alleged Roland, who is mentally retarded and suffers from several other genetic and neurological disorders, including Krabbne leujodystrohia and Tourette’s syndrome, sustained injuries due to the publication of a “horrifically defamatory video ridiculing Roland.”

In 2004, Roland began working at the Grand 16 Movie Theatre (the Grand). According to Plaintiffs, Roland soon began experiencing verbal harassment from Deni Durousseau, who was also employed by the Grand. Despite complaints to management at the Grand, including its general manager, Plaintiffs alleged Durousseau continued to verbally harass Roland. Plaintiffs asserted in 2008, Durousseau and another employee, David Lacombe, videotaped Roland while he was at work at the Grand without his knowledge. The video was uplinked to YouTube. According to Plaintiffs’ petition, the video included assertions that Roland was a “sorry excuse of human life,” a “retarded pedophile” and “smokes weed.” Plaintiffs assert Roland was devastated when he found out about the video and became extremely depressed. He resigned his position with the Grand in August of 2009. Plaintiffs alleged because Durousseau and Lacombe were acting within the course and scope of their employment with the Grand, Southern Theatres LLC (the owner of the Grand) was vicariously liable for their actions. Plaintiffs requested damages for defamation and intentional infliction of emotional ^distress from the various defendants.

After the petition was filed, Durousseau, in proper person, filed an answer on January 14, 2010, denying the allegations. Southern Theatres filed an answer on February 5, 2010, denying any liability on its part. During discovery, Roland Walet’s deposition was taken along with the deposition of his psychiatrist. Durousseau requested a trial date, and the district court set a date of April 2, 2012. Southern Theatres filed a motion for summary judgment on December 14, 2011.

On February 2, 2012, Plaintiffs filed a First Amended Petition for Damages. The amended petition named several new defendants, including Daniel James Brous-sard (the Assistant Manager of the Grand during the relevant period), Charlie Net-ties (the General Manager of the Grand during the relevant period), and VSS-Southern Theatres. The amended petition also named Wausau Underwriters Insurance Company and Liberty Mutual Insurance Company, who were alleged to provide a policy of comprehensive general liability insurance to defendant Southern Theatres during all or some of the relevant period.

According to Defendants the amended petition was filed without a motion for leave and a duty judge not assigned to the case signed an order on an ex parte basis allowing the filing of the amended petition. This was done without giving Southern Theatres or Durousseau an opportunity to object or respond.

On February 17, 2012, Southern The-atres filed an Exception of Prescription and Motion to Strike First Amended Petition for Damages and Jury Demand, praying for the dismissal of the Plaintiffs’ amended petition and that its answer to the original Petition for Damages be deemed good and sufficient. Specifically, Southern Theatres contended the amended petition added new claims, new parties, new factual allegations, and made a new request for a jury trial. Southern The-atres |4 contended it was entitled to dismissal of Plaintiffs’ newly made claim of disability discrimination. In addition, Southern Theatres moved to have the newly added parties, claim and factual allegations stricken and to have Plaintiffs’ request for a jury stricken.

A hearing was held on April 2, 2012, after which the trial court ruled in Southern Theatres’ favor, rendering a judgment “striking the First Amended Petition for Damages and Jury Demand, granting the Exception of Prescription for claims made therein, granting the Exception of Prescription against the additional and named defendants therein and striking the order for a jury trial.” The trial court gave the following oral reasons:

I’m satisfied that the amending petition established what I consider a new and different claim, and that actually the original petition being a suit for defamation, really doesn’t put the defendant on notice that — or fair notice of a second claim for a disability discrimination suit under Louisiana Employment Discrimination Act. And really, in this case, I think substantial justice would be served by, one, striking the amendments and request for jury trial and granting the Exception of Prescription ...

Plaintiffs filed a writ application with this Court (docket number 12-516) based on the district court’s refusal to allow the addition of the insurers (Wausau and Liberty Mutual) and its granting of the motion to strike the request for a jury trial. Plaintiffs also lodged the present appeal, contending the trial court erred in granting the exception of prescription and striking portions of the amended petition. Finding the writ application and the instant appeal sought review of the same judgment, the writ panel determined a ruling on the writ application should be rendered simultaneously with the opinion in this appeal. Thus, the writ panel granted the writ application “for the limited purpose of ordering the consolidation of the writ application with the appeal.”

| «ANALYSIS

At issue in this appeal is (1) whether Plaintiffs’ amended petition added a new and different claim for disability discrimination for which Defendant, Southern The-atres, was not given adequate notice of in the original petition; and (2) whether the amended petition naming Southern The-atres’ insurers, Wausau and Liberty Mutual, as party defendants, related back to the original petition for purposes of adding newly named defendants.

I. Exception of Prescription as to the Claim for Disability Discrimination.

Roland Walet resigned his position with the Grand in August of 2009. The original petition was filed on December 21, 2009. The amended petition was filed on February 2, 2012, which raised for the first time a disability discrimination claim under La.R.S. 23:323. A cause of action for discrimination under the Louisiana Employment Discrimination Law is “subject to a prescriptive period of one year.” La. R.S. 23:303(D). As set forth above, Roland stopped working for the Grand in August of 2009, and did not seek to return to his work there. Thus, on its face the claim for disability discrimination is prescribed unless it relates back to the filing of the original petition.

Plaintiffs argues the trial court erred in finding his claim for disability discrimination did not relate back to the filing of the original petition. Louisiana Code of Civil Procedure Article 1153 sets forth what is required for an amended petition to relate back to the original petition:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment | ^relates back to the date of filing the original pleading.

The original petition states the “[t]he gravamen of the Petition for Damages is the publication and Internet posting of a video which resulted in national and international dissemination of false and defamatory statements about Roland Douglas Walet.” There is no mention in the original petition of any allegations of disability discrimination. While the petition sets out that the employees who made the video were employees of the Grand and made the video while working at the Grand in the course and scope of their employment (for which Southern Theatres is vicariously liable), these factual allegations relate to the act of dissemination of the YouTube video. After reviewing the amended petition in conjunction with the original petition, we cannot say the trial court erred in finding “that ... the original petition being a suit for defamation, really doesn’t put the defendant on notice that — or fair notice of a second claim for a disability discrimination suit under Louisiana Employment Discrimination Act.”

This Court has held “[t]he essential factors courts uniformly look for [in determining if a new claim in an amended petition relates back] is whether the timely filed petitions provided opponents adequate notice of a judicial controversy arising out of a specific set of circumstances, and whether there is a factual connexity between the petitions.” Bethea v. Modern Biomedical Services, Inc., 97-332, p. 8 (La.App. 3 Cir. 11/19/97), 704 So.2d 1227, 1232, writs denied, 97-3169, 97-3170 (La.2/13/98), 709 So.2d 760, 761 (citing Taylor v. Johnson, 617 So.2d 1209 (La.App. 3 Cir.1993)). Plaintiffs contend the original petition did give adequate notice to Southern Theatres of the disability discrimination claim. We disagree.

In Autrey v. Energy Corp. of America, Inc., 594 So.2d 1354 (La.App. 3 Cir.), writ denied, 596 So.2d 197 (La.1992), the plaintiff suffered a heart attack at work and filed a workers’ compensation suit seeking benefits in 1986. The plaintiff |7never returned to work. Over two years after the workers’ compensation suit was filed, plaintiff filed an amended petition alleging retaliatory discharge. An exception of prescription was filed and denied by the trial court. This Court reversed the denial of the exception of prescription, holding the amended petition for retaliatory discharge did not relate back to the filing of the original petition. We stated:

The original petition only alleges that [plaintiff] was employed by Energy and that he was injured while working for Energy, and makes a claim for worker’s compensation benefits. The original petition lacks any allegation of Energy’s refusing to employ, or discharging, [plaintiff] for having asserted a worker’s compensation claim and did not give Energy fair notice that a formal claim under the retaliatory discharge provision was forthcoming. The factual allegations are totally different. The wrongful discharge alleged in the supplemental and amending petition arises from a completely separate occurrence. The filing of the original petition for worker’s compensation benefits does not toll the running of prescription on a subsequently filed retaliatory discharge claim.
Therefore, we find the retaliatory discharge claim has prescribed and the amending and supplemental petition does not relate back to the date of the original petition.

Id. at 1359.

We find a similar situation here. The amended petition’s claim for disability discrimination included allegations and occurrences that are different from those contained in the original petition. The factual allegations in the original petition all relate to the dissemination of the YouTube video. The original petition lacks any allegation of Southern Theatres engaging in disability discrimination. Simply because the original petition notes that Roland was employed by Southern Theatres and alleges he was harassed at work by co-employees does not give fair notice to Southern Theatres that a formal claim for disability discrimination was forthcoming. Therefore, we find the trial court did not err in finding the amended petitions claims sounding in disability discrimination were prescribed.

|S/J. Exception of Prescription as to the Addition of New Defendants.

Plaintiffs also allege the trial court erred in refusing to find the amended petition related back to allow the addition of new defendants, Wausau and Liberty Mutual, who were the general liability insurers for Southern Theatres.

The law allows for new defendants to be added by amended pleadings if the applicable criteria are met. Giroir v. South Louisiana Med. Ctr., 475 So.2d 1040 (La.1985); Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). The supreme court in Ray, 434 So.2d at 1087, established the following criteria for determining whether Article 1153 allows an amendment which changes the identity of the party defendant to relate back to the original petition:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

This Court has stated, “[wjhere there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and the additional or supplemental parties, amendment should be allowed.” Holmes v. Triad Hospitality, 11-1486, p. 4 (La.App. 3 Cir. 5/16/12), 89 So.3d 532, 535 (citing Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980)).

Applying the four-part test of Ray, we find merit to Plaintiffs’ argument that the amended petition relates back to the original filing for purposes of adding 19Wausau and Liberty Mutual. First, Plaintiffs’ amended claim’s assertions of defamation and intentional infliction of emotional distress arise out of the same occurrence as set forth in the original petition.

We also find the second Ray criteria is met. The Louisiana Supreme Court in Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 (La.1990), noted “[t]he gravamen of the second criteria is prevention of prejudice to the defendant in preparing and conducting its defense.” The Findley court stressed “[w]hile designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, prescriptive statutes are not designed to protect a defendant against nonprejudicial pleading mistakes that his opponent makes in filing the claim within the period.” Id. at 1170 (citing Giroir, 475 So.2d 1040 (La.1985), and Allstate Ins. Co. v. Theriot, 376 So.2d 950 (La.1979)). We can see no prejudice that will be incurred by Wausau and Liberty Mutual. The Findley court noted prejudice in these situations is “usually ... the deprivation of an opportunity to perform a timely investigation of the claim ... or by the loss of documents or witnesses which the defendant would have gathered or preserved if timely notified.” Id. Considering its own insured engaged immediately in the discovery process and has contested these proceedings throughout, Wausau and Liberty Mutual cannot claim prejudice in this matter.

As to the fourth Ray criteria, it cannot be reasonably argued that Wausau and Liberty Mutual were wholly new or unrelated defendants. They were the insurers of a named defendant, Southern Theatres, in the original petition. This is not a situation of an amending petition adding a wholly new or unrelated defendant, but rather correcting a pleading oversight made by Plaintiffs in their original petition.

In the present case, as it relates to the addition of the insurers of Southern The-atres, we do not find any essential protective purpose of the prescriptive statute that is violated by permitting relating back. Further, it is well settled the doctrine | inof relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice. Giron v. Housing Auth. of Opelousas, 393 So.2d 1267 (La.1981); Cohen v. Brookshire Bros. Inc., 01-1159 (La.App. 3 Cir. 6/5/02), 819 So.2d 429, writ denied, 02-1767 (La.10/14/02), 827 So.2d 423; Strouse v. M & M Props., 32,792 (La.App. 2 Cir. 3/3/00), 753 So.2d 434. We conclude the amended petition naming Wausau and Liberty Mutual as party defendants relates back under La.Code Civ.P. art. 1153 to the date of filing of the original petition. Accordingly, this portion of the trial court’s judgment to the contrary is reversed.

III. Grant of Defendant’s Motion to Strike Jury Demand.

Louisiana Code of Civil Procedure Article 1733(c) provides that “[t]he pleading demanding a trial by jury shall be filed not later than ten days after either the service of the last pleading directed to any issue triable by a jury, or the granting of a motion to withdraw a demand for a trial by jury.” The jurisprudence has recognized the absolute and inviolate right of party to a juridical cause to a trial by jury, except as limited by law and provided the requisite procedural forms are fulfilled. Alkazin v. City of Baton Rouge, 97-738 (La.App. 1 Cir. 11/7/97), 705 So.2d 208; Revel v. Telecheck Louisiana, 581 So.2d 405 (La.App. 4 Cir.), writ denied, 588 So.2d 1116 (La.1991). Although the right to a jury trial is fundamental, it still must be requested timely. Sharkey v. Sterling Drug, Inc., 600 So.2d 701 (La.App. 1 Cir.), writs denied, 605 So.2d 1099, 1100 (La.1992). If a request for a jury trial is not made timely, the right is waived, and the trial judge is vested with much discretion to disallow the filing of amended pleadings, if he finds that they are being filed solely for the purpose of circumventing the time limitations of La.Code Civ.P. art. 1733. Id. The right of a litigant to a jury trial is so fundamental in character, that the courts will indulge every presumption against a waiver, loss, or forfeiture thereof. Champagne v. American Southern Ins. Co., 295 So.2d 437 (La.1974).

Inin the present case, the trial court did not specifically explain his reasons for striking Plaintiffs’ request for a jury trial. In opposing Plaintiffs’ request for jury trial, Southern theatres opined that the sole purpose of the Plaintiffs’ amended petition was to circumvent the time limitations for requesting a jury trial. It can be assumed the trial court agreed with this argument. However, having found the trial court erred in not allowing the addition of Wausau and Liberty Mutual, it cannot reasonably follow that the amended petition was filed solely for the purposes of circumventing the time limitations of La.Code Civ.P. art. 1733. Therefore, we reverse the trial court’s grant of Defendant’s Motion to Strike Jury Demand.

DECREE

For the foregoing reasons, we reverse the portion of the trial court’s judgment granting the exception of prescription as to the insurers, Wausau and Liberty Mutual. We conclude the amended petition naming Wausau and Liberty Mutual as party defendants relates back under La. Code Civ.P. art. 1153 to the date of filing of the original petition. We also reverse the portion of the judgment granting Defendant’s Motion to Strike Jury Demand. All other aspects of the trial court’s judgment are affirmed. All costs of this appeal are assessed equally against Plaintiffs and Defendants.

AFFIRMED IN PART; REVERSED IN PART.

      . Durousseau's exact position at the Grand is not clear. In Plaintiffs’ original petition it is stated he "occupied a managerial position.” In the amended petition it is sated he was "employed as an usher.”

      . On May 3, 2010, YouTube, LLC was dismissed from these proceedings when their exceptions of no cause of action and no right of action were granted. It appears from the record that defendant, David Lacombe, was never served with the lawsuit.

      . Durousseau subsequently retained legal counsel for these proceedings.

      . Southern Theatres also notes Plaintiffs failed to comply with comply with the notice provision of La.R.S. 23:303. Louisiana Revised Statutes 23:303(C) provides:
      A plaintiff who believes he or she has been discriminated against, and who intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days before initiating court action, shall detail the alleged discrimination, and both parties shall make a good faith effort to resolve the dispute prior to initiating court action.
      Having found the claim for disability discrimination did not relate back to the original petition, we pretermit any discussion of this issue.

      . No challenge was made by Plaintiffs to the portion of the trial court's ruling denying the addition of the other newly named defendants.


author: THERIOT, J.

text:
    In re INTERDICTION OF Lorena N. COULON.
    No. 2012 CA 1429.
    Court of Appeal of Louisiana, First Circuit.
    March 22, 2013.

      Daniel J. Caruso, John F. Shreves, New Orleans, LA, for Appellant Charles Coul-on.
    Wyman E. Bankston Livingston, LA, for Appellee Lorena N. Coulon.
    Before GUIDRY, CRAIN, and THERIOT, JJ.
   THERIOT, J.

12This appeal is from a trial court judgment sustaining an exception of no cause of action and dismissing the appellant’s petition for interdiction, without allowing the appellant an opportunity to amend his petition to state a cause of action. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Charles Coulon filed a petition for interdiction on January 20, 2012, seeking to have his eighty-eight-year-old-mother, Lorena Coulon, interdicted. Mr. Coulon alleged that Ms. Coulon’s husband and parents are deceased, and she has two adult children, himself and his brother, Frederick Coulon (with whom she lives). Mr. Coulon further alleged that Ms. Coul-on has no legal representative and has not designated a curator in writing. Mr. Coul-on alleged that Ms. Coulon suffers from Alzheimer’s disease, which has rendered her unable to care for her person or property, making a full interdiction necessary. In addition to asking the court to grant a full interdiction of his mother, Mr. Coulon asked the court to relocate Ms. Coulon to his home and to appoint him as curator to provide for his mother’s care and manage her income and assets.

Ms. Coulon filed a peremptory exception of no cause of action, in which she points out that she has designated a legal representative by the execution of a “power of attorney” on June 11, 2011, and that the petition for interdiction does not allege that Ms. Coulon’s interests could not be adequately protected by less-restrictive means than a full interdiction, e.g., the power of attorney.

After a hearing, the trial court sustained the exception of no cause of action because the petition for interdiction did not allege that Ms. Coulon’s interests were not currently being protected. The court declined to allow Mr. |sCoulon the opportunity to amend his petition to state a cause of action, stating that it did not believe the law provided for an opportunity to amend to state a cause of action, and dismissed the suit. This appeal by Mr. Coulon followed.

DISCUSSION

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Ramey v. DeCaire, 2003-1299 (La.3/19/04), 869 So.2d 114, 118. Therefore, exceptions of no cause of action present legal questions and are reviewed under the de novo standard of review. Southeastern Louisiana v. Cook, 2012-0021 (La.App. 1 Cir. 9/21/12), 104 So.3d 124, 128.

Where 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. If the grounds of the objection raised through the exception cannot be so removed, or where the plaintiff fails to comply with the court’s order to amend, the action shall be dismissed. La. C.C.P. art. 934.

|4A court may order the full interdiction of a person who, due to an infirmity, is consistently unable to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means. La. C.C. art. 389. To the extent known to the petitioner, the petition for interdiction shall set forth the following with particularity:

(1) The name, domicile, age, and current address of the petitioner and his relationship to the defendant.
(2) The name, domicile, age, and current address of the defendant and the place the petitioner proposes the defendant will reside if the relief sought in the petition is awarded.
(3) The reasons why interdiction is necessary, including a brief description of the nature and extent of the alleged infirmities of the defendant.
(4) If full interdiction is requested, the reasons why limited interdiction is inappropriate.
(5) If limited interdiction is requested, the capacity sought to be removed from the limited interdict, and the powers sought to be conferred upon the limited curator.
(6) The name and address of the spouse of the defendant.
(7) The name and address of the adult children of the defendant or, if he has none, of his parents and siblings or, if he has none, of his nearest adult relative.
(8) The name and address of any legal i'epresentative of the defendant.
(9) The name and address of any person previously designated as curator by the defendant in a writing signed by the defendant.
(10) The name, domicile, age, education, and current address of the proposed curator, and the reasons why the proposed curator should be appointed.

La. C.C.P. art. 4541. The petitioner in an interdiction proceeding bears the burden of proof by clear and convincing evidence. La. C.C.P. art. 4548.

Although Mr. Coulon’s petition alleges that Ms. Coulon has Alzheimer’s disease, that she is unable to care for her person or property, Rand that limited interdiction is not appropriate, these allegations are not sufficient to set forth a cause of action for . full interdiction. As pointed out by the trial court, Mr. Coulon failed to allege that his mother’s interests are not currently being fully protected; ie., that her interests could not be protected by less-restrictive means. Nevertheless, it does not appear that the grounds for this objection cannot be removed by amendment of the petition. Therefore, the trial court should have allowed Mr. Coulon an opportunity to amend his petition to set forth a cause of action. Accordingly, we reverse the judgment of the trial court dismissing Mr. Coulon’s petition for interdiction and remand this matter so that Mr. Coulon may amend his petition within the delay allowed by the trial court.

DECREE

The judgment of the trial court is affirmed insofar as it sustains the peremptory exception raising the objection of no cause of action and reversed to the extent it dismisses Mr. Coulon’s petition without allowing him an opportunity to amend to state a cause of action. This matter is remanded with instructions for the trial court to set a delay for amendment of the petition. If Mr. Coulon fails to amend his petition as instructed, his petition shall be dismissed by the trial court. Costs of this appeal are to be borne by appellant, Charles Coulon.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.


author: SUSAN M. CHEHARDY, Chief Judge.

text:
    Amanda GAUDET v. JEFFERSON PARISH, Jefferson Parish Parks and Recreation Department and Berkley Accident and Health.
    No. 12-CA-707.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Kevin R. Krause, Attorney at Law, Me-tairie, LA, for Appellant, Amanda Gaudet.
    Andrew M. Maestri, Assistant Parish Attorney, Jefferson, LA, for Appellee, Parish of Jefferson.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

[2On appeal, Amanda Gaudet challenges the trial court’s ruling sustaining the Parish of Jefferson’s exception of no cause of action. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Because this case involves a ruling regarding a peremptory exception of no cause of action, we begin with the allegations of fact pled in the plaintiffs petition, accepting them as true for the purpose of ruling on the exception of no cause of action. State, Div. of Admin., Office of Facility Planning and Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La.5/10/11), 63 So.3d 940, 941 (citing Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641).

On October 1, 2010, a number of softball games took place at LaSalle Playground on Airline Drive in Metairie, Louisiana. To conform to regulations regarding “base path” lengths for different age groups, the facility’s groundskeepers, who are employees of the Jefferson Parish Recreational Department, repositioned the bases between games.

| sAmanda Gaudet, appellant herein, was the first batter during her game. After she hit the ball, she ran toward first base but, before reaching the base, she tripped and fell. Ms. Gaudet alleges that she tripped over the “base plate,” which had been mistakenly left in the “base path” by the groundskeepers when they repositioned the bases before the game.

On September 30, 2011, Ms. Gaudet filed suit, seeking damages for her personal injuries, against (1) the Parish of Jefferson; (2) Jefferson Parish Parks and Recreation Department; and (3) Berkley Accident and Health, her supplemental accident insurer. Plaintiffs petition specifically alleges that defendants were negligent for failing to maintain a safe and secure playing environment; for hiring employees that created a dangerous playing environment; and for failing to inspect and discover a dangerous condition on its property.

On April 12, 2012, the Parish of Jefferson filed an exception of no cause of action, asserting that Ms. Gaudet has no cause of action against the Parish of Jefferson, pursuant to La. R.S. 9:2795(E)(2)(a), which limits liability for injuries occurring on “any lands, ... which are owned, leased, or managed, as a public park by ... political subdivisions and which are used for recreational purposes.” Ms. Gaudet opposed the exception arguing that La. R.S. 9:2795 does not limit liability in this matter for three reasons: (1) LaSalle Playground is excluded as a “commercial recreational facility,” (2) the statute excludes “playground equipment ... which is defective,” and (3) the statute refers to defects in the land, not employee negligence. After a hearing on the matter, the trial court granted the Parish of Jefferson’s exception of no cause of action. Ms. Gaudet is appealing that ruling.

|„LAW AND DISCUSSION

On appeal, Ms. Gaudet contends that the trial court erred in sustaining the Parish of Jefferson’s exception for two reasons: first, La. R.S. 9:2795 covers defects in land, not negligence of individuals; and, second, “defective playground equipment” is specifically excluded from immunity.

The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Veroline v. Priority One EMS, 09-1040 (La.10/9/09), 18 So.3d 1273, 1275. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts the well-pleaded allegations of fact as true. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

In Cleco Corp. v. Johnson, 01-0175 (La.9/18/01), 795 So.2d 302, 304, the Louisiana Supreme Court enunciated the standard for appellate review of the grant of an exception of no cause of action:

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal and this court should subject the case to de novo review because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. (Citations omitted).

La. R.S. 9:2795 reads, in pertinent part:

A. As used in this Section:
(1) “Land” means urban or rural land, ... and machinery or equipment when attached to the realty.
(2) “Owner” means ... a lessee, occupant or person in control of the premises.
(3) “Recreational purposes” includes but is not limited to any of the following, or any combination thereof: ... summer and winter sports....
(4) “Charge” means the admission price or fee asked in return for permission to use lands.
(5) “Person” means individuals regardless of age.
1SB. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
(2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.
E. (2)(a) The limitation of liability provided in this Section shall apply to any lands, whether urban or rural, which are owned, leased, or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes.
(b) The provision of supervision on any land managed as a public park by the state or any of its political subdivisions does not create any greater duty of care which may exist and does not create a duty of care or basis of liability for personal injury or for damage to personal property caused by the act or omission of any person responsible for security or supervision of park activities, except as provided in Sub-paragraph (E)(2)(d) of this Section.
(c) For purposes of the limitation of liability afforded to parks pursuant to this Section this limitation does not apply to playground equipment or stands which are defective.
(d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.

(Emphasis added).

,;In this matter, the Parish of Jefferson established, in its answer, that it managed the public park for recreational purposes. Although the recreational use statutes offer no guidance as to the definition of “public park,” the jurisprudence indicates that a park that is open to the public and provides accommodations for a variety of recreational activities is a “public park.” See, Webb v. Parish of St. Tammany, 06-849 (La.App. 1 Cir. 2/9/07), 959 So.2d 921, writ denied, 07-521 (La.4/27/07), 955 So.2d 695; Lambert v. State, 40,170 (La.App. 2 Cir. 9/30/05), 912 So.2d 426, 433, writ denied, 05-2310 (La.4/17/06), 926 So.2d 509 and writ denied, 05-2311 (La.4/17/06), 926 So.2d 509. Thus, the Parish of Jefferson established that it was entitled to immunity under La. R.S. 9:2795(E)(2)(a) in this matter.

Ms. Gaudet argues, however, that La. R.S. 9:2795(E)(2)(d) precludes immunity for the Parish in this case because the Parish’s employees were grossly negligent in failing to remove the “base plate” from the ground when they reconfigured the “base paths” immediately before the game. Gross negligence has been defined by our supreme court as “the want of even slight care and diligence. It is the want of that diligence, which even careless men are accustomed to exercise.” Lenard v. Dilley, 01-1522 (La.1/15/02), 805 So.2d 175, 180.

We agree that the limitation of liability in La. R.S. 9:2795(E)(2)(d) does not extend to “grossly negligent acts by an employee of the public entity.” Because Ms. Gaudet alleged in her petition that the Parish of Jefferson’s employees created a dangerous playing environment with their lack of skill, the trial court erred in granting the Parish’s exception of no cause of action with respect to the negligence of its employees in reconfiguring the bases. Because we are reversing the trial court’s grant of the Parish of Jefferson’s exception of no cause of action, we |7pretermit discussion of Ms. Gaudet’s remaining issue and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . In response to the Parish of Jefferson’s dec-linatory exceptions, Ms. Gaudet filed an amending and supplemental petition dismissing "Jefferson Parish Parks and Recreation Department,” which is not a legal entity.