Llopis v. La. State Bd. of Dentistry

255 So.3d 627

Roberto LLOPIS, D.D.S.

v.LOUISIANA STATE BOARD OF DENTISTRY, et al.

NO. 2017-CA-0934

Court of Appeal of Louisiana, Fourth Circuit.

August 29, 2018

Bobbie C. Smith, Anna M. Jackson, 4640 Carrollton Avenue, Suite 200-A, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT

Gregory C. Fahrenholt, Special Assistant Attorney General, BURGLASS & TANKERSLEY, LLC, 5213 Airline Drive, Metairie, LA 70001, COUNSEL FOR DEFENDANTS/APPELLEES

(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Paula A. Brown )

Judge Paula A. Brown

Plaintiff, Roberto Llopis, D.D.S. ("Dr. Llopis"), appeals the district court's August 1, 2017 judgment, which granted the exception of no cause of action filed by defendants, the State of Louisiana/Department of Health and Hospitals/Louisiana State Board of Dentistry, the Louisiana State Board of Dentistry, C. Barry Ogden, Brian M. Begue, and Dr. David Melancon (collectively, the "Board"). For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying dispute in this matter arises from Dr. Llopis' attempts to renew his license to practice dentistry in Louisiana.¹ Dr. Llopis obtained his Louisiana license in 1993. In 2003, the Board began an investigation of Dr. Llopis. The investigation was not completed because Dr. Llopis was called to active military duty. Dr. Llopis, after moving to the state of Washington, voluntarily surrendered his Louisiana license on November 15, 2006. In October 2010, Dr. Llopis began his efforts to become re-licensed in Louisiana. He first sought a restricted license to work at the Louisiana State University School of Dentistry ("LSUSD"); and thereafter, he applied for a temporary license. After the Board failed to re-issue his license, litigation ensued between the parties.

This matter has been before this Court on three prior occasions. To encapsulate the extensive history behind this litigation, we adopt many of the facts delineated in Llopis v. State , 2016-0041 (La. App. 4 Cir. 12/14/16), 206 So.3d 1066 (" Llopis III ") as follows.

Dr. Llopis's first appeal concerned claims against the Board, its executive director, its president and its counsel arising under the Louisiana Open Meetings Law and claims for judicial review of certain decisions of the Board. Those claims were dismissed by the trial court on exceptions of no cause of action. The trial court's judgment was affirmed by this Court. SeeLlopis I .^[2]

Dr. Llopis then filed a first amended petition on January 25, 2012 against the same parties and adding other members of the Board. This suit sought "damages allegedly suffered by Dr. Llopis when he applied for a restricted license with the Board in 2010, after having voluntarily surrendered his license to practice dentistry in Louisiana in 2006." Llopis v. Louisiana State Bd. of Dentistry , [20] 13-0659, pp. 1-2 (La. App. 4 Cir. 6/11/14), 143 So.3d 1211, 1212, writ denied , [20]14-1483 (La. 10/31/14), 152 So.3d 152 (" Llopis II "). The suit was thereafter dismissed on a motion for involuntary dismissal and an exception of insufficiency of service of process. This Court reversed the judgment and remanded the case to the trial court. SeeLlopis II .

Following remand, the defendants filed Peremptory Exceptions of Res Judicata and No Cause of Action and a Declinatory Exception of Improper Service of Actions. A hearing was held on June 4, 2015 and by judgment dated June 26, 2015, the exceptions were denied.

On July 10, 2015, the defendants filed a Motion for New Trial of the exceptions heard on June 4, 2015. The grounds asserted in the motion were that "the judgment rendered is clearly contrary to the law" and that "good ground" under La. C.C.P. Art. 1973 existed due to the fact that Dr. Llopis did not file an opposition memorandum until one day prior to the hearing (and defendants did not receive a copy of it until the hearing date). The motion was heard on August 7, 2015 and by judgment dated September 2, 2015, the trial court granted the Motion for New Trial, reversing its prior ruling and thereby sustaining the exception of no cause of action and dismissing all of Dr. Llopis' claims.

Dr. Llopis filed a Motion for Appeal on September 21, 2015.

Id. , 2016-0041, pp. 2-3, 206 So.3d at 1068.

In Llopis III , this Court noted that the district court's initial denial of the Board's exception of no cause of action was an interlocutory judgment; as such, the district court erred in granting the motion for new trial because no procedure exists for a party to apply for a new trial to seek relief from an interlocutory judgment. Id. 2016-0041, p. 6, 206 So.3d at 1070. Accordingly, the Llopis III Court vacated the judgment granting the exception of no cause of action and remanded the matter to the district court for further proceedings. Id.

Upon remand, the Board re-urged its exception of no cause of action (the "Exception"), arguing that its adjudicatory role as an administrative public agency provides it with quasi-judicial immunity. The district court heard argument on the Exception on July 13, 2017. After argument, the district court sustained the Exception and dismissed Dr. Llopis' action against the Board with prejudice.

This appeal followed.

DISCUSSION

Dr. Llopis asserts the district court erred by permitting the Board to re-urge its previously denied Exception without presenting any new evidence in support.

Dr. Llopis does acknowledge that, pursuant to La. C.C.P. art. 928³ and well-settled jurisprudence, a district court is permitted to reconsider a peremptory exception "at any stage of the proceedings in which an objection was made, to set aside a decree and to sustain the exception, upon finding that it erred in overruling it." R. G. Claitor's Realty v. Juban , 391 So.2d 394, 396 (La. 1980) (citations omitted); see also Loughlin v. United Services Automobile Association , 2017-0109, p. 15 (La. App. 4 Cir. 12/20/17), 233 So.3d 132, 142. Even so, Dr. Llopis, citing Lomont v. Meyer-Bennett , 2016-436, p. 10 (La. App. 5 Cir. 12/14/16), 210 So.3d 435, 444, contends that the "law of the case" doctrine limits the right to re-urge a peremptory exception to those circumstances where the litigant presents new, persuasive evidence.⁴ He, therefore, maintains that because the Board did not present any new evidence, the district court should not have heard its re-urged Exception. We disagree.

In Lomont , the appellate court did not mandate that a litigant offer new evidence, but rather, the court opined that a district court should find that a "compelling justification" exists to re-litigate a peremptory exception. Lomont , 2016-0436, p. 10, 210 So.3d at 444. Further, the application of the "law of the case" doctrine is discretionary; it does not preclude a district court from reconsideration of a judgment overruling a peremptory exception, and subsequent thereto, sustaining the exception. See Landry v. Blaise , 2002-0822, p. 3 (La. App. 4 Cir. 10/23/02), 829 So.2d 661, 664.

In the case sub judice , the district court noted that it initially denied the Board's Exception "out of an abundance of caution" in order to have the opportunity to review Dr. Llopis' late-filed opposition. After review of the Board's Motion for New Trial, the Board's re-urged Exception and Dr. Llopis' opposition, the district court granted the Board's Motion for New Trial and sustained the Exception on the merits; thus, acknowledging that it erred when it first denied the Exception. We find the district court's reasons provide compelling justification to reconsider the Exception. Hence, the district court did not abuse its discretion in allowing the Board to re-urge the Exception. See Adam v. Great Lakes Dredge & Dock , 273 So.2d 60, 61-62 (La. App. 4 Cir. 1973). This assignment of error is unpersuasive.

In the alternative, Dr. Llopis argues that the district court erred in finding his Petition failed to state a cause of action. This Court discussed the function of an exception of no cause of action and appellate review of this exception in Meckstroth v. Louisiana Dept. of Transp. & Dev., 2007-0236 (La.App. 4 Cir. 6/27/07), 962 So.2d 490 as follows:

The peremptory exception of no cause of action tests the legal sufficiency of a petition by examining whether, based upon the facts alleged in the pleading, the law affords the plaintiff a remedy. La. Code of Civ. Proc. Art. 927(A)(4) ; Montalvo v. Sondes , [19] 93-2813 (La. 5/23/94), 637 So.2d 127, 131. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action.

La. Code Civ. Proc. Art. 931. The court reviews the petition and accepts all well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is entitled to the relief sought. Everything on Wheels Subaru, Inc. v. Subaru South, Inc. , 616 So.2d 1234, 1235-36 (La. 1993) ; Kuebler v. Martin , 578 So.2d 113 (La. 1991) ; Hero Lands Co. v. Texaco, Inc. , 310 So.2d 93 (La. 1975). Because Louisiana is a fact-pleading jurisdiction, mere legal conclusions, unsupported by facts, are not sufficient to set forth a cause of action. State ex rel. Ieyoub v. Racetrac Petroleum, Inc. , [20] 01-0458 (La. App. 3 Cir. 6/20/01), 790 So.2d 673, 678. The reviewing court should conduct a de novo review because the exception raises a question of law and the trial court's decision is based solely on the sufficiency of the petition. Fink v. Bryant , [20] 01-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349 ; Wright v. Louisiana Power & Light , [20] 06-1181, p. 8 (La. 3/9/07), 951 So.2d 1058, 1069.

The Board urges that Dr. Llopis asserted no cause of action against it because the Board has quasi-judicial absolute immunity;⁵ and pursuant to Durousseau v. Louisiana State Racing Commission , 1998-0442, (La. App. 4 Cir. 12/9/98), 724 So.2d 844, the Exception was properly sustained. In Durousseau , this Court considered whether a jockey asserted...