McCalmont v. McCalmont

297 So.3d 1057

James Addison MCCALMONT, III

v.James Addison MCCALMONT, IV and Payton Brooks McCalmont

19-738

Court of Appeal of Louisiana, Third Circuit.

April 29, 2020

Todd A. Rossi, Michael J. deBarros, Kean Miller, LLP, P. O. Box 3513, Baton Rouge, LA 70821, (225) 387-0999, Counsel for Appellant: JAMES ADDISON MCCALMONT, III

Curtis R. Shelton, Ayres, Shelton, Williams, Benson & Paine, LLC, P. O. Box 1764, Shreveport, LA 71166, (318) 227-3500, Counsel for Appellant: JAMES ADDISON MCCALMONT, III

Jimmy R. Faircloth, Jr., Nathan W. Friedman, Mary K. Price, Faircloth, Melton, Sobel & Bash, LLC, 105 Yorktown Drive, Alexandria, LA, 71303 (318) 619-7755, Counsel for Appellee: JAMES ADDISON MCCALMONT, IV and PAYTON BROOKS MCCALMONT¹

Court composed of John E. Conery, D. Kent Savoie, and Jonathan W. Perry, Judges.

PERRY, Judge.

This case involves the question of whether a father's subsequent suit against his son for invasion of privacy and an alleged violation of Louisiana's Electronic Surveillance Act (hereafter the "Electronic Surveillance Act"), based upon almost verbatim allegations he asserted against his daughter in a prior suit, a suit now settled and dismissed with prejudice, was barred by res judicata. We reverse the trial court's judgment which sustained the peremptory exception of res judicata and further deny the son's peremptory exception of no cause of action filed for the first time in this court.

FACTS AND PROCEDURAL HISTORY

This litigation centers on family contentions which begin with the divorce of James A. McCalmont, III (hereafter "James"), and Colleen Hawthorn (hereafter "Colleen") and end with separate lawsuits James filed, after the Colleen's death, first against his daughter Lauren Elizabeth McCalmont (hereinafter "Lauren") and then against his son, James A. McCalmont, III (hereafter "Jay").

On February 15, 2017, James sued his daughter, Lauren, alleging that she accessed his cell phone on or about July 31, 2016, furtively obtained information of embarrassing private facts about him, and then shared that information with third parties. This it was contended was an invasion of privacy and violated La.R.S. 15:1301 –1318, the Electronic Surveillance Act. Just prior to James's lawsuit, Lauren had filed suit against James, alleging he had committed the tort of battery and had intentionally inflicted emotional distress on her. On April 4, 2017, James and Lauren settled their cross-litigation, each agreeing to dismiss the lawsuits they had brought against the other; in the settlement document, James reserved the right to sue third parties. On May 3, 2017, James's suit against Lauren and Lauren's suit against James were formally dismissed with prejudice.

On July 31, 2017, James, using almost verbatim language from his lawsuit against Lauren, sued his son, Jay, and Jay's wife, alleging that Jay disclosed information and data to third parties and James's wife, that Lauren had intercepted embarrassing private facts about James, and that this invaded his privacy and violated the Electronic Surveillance Act. After Jay's wife was dismissed from the lawsuit on a peremptory exception of no cause of action and after numerous other filings, Jay interposed a peremptory exception of res judicata to James's lawsuit against him. After conducting a hearing, the trial court sustained Jay's peremptory exception and dismissed James's lawsuit. In reaching this conclusion, the trial court stated:

[I]t is the finding of this court that the peremptory exception of res judicata should have been granted as a second lawsuit of this matter would be arising out of the same transaction and occurrence that was the subject matter of the current litigation.

James perfected a suspensive appeal. He contends that the trial court erred: (1) when it found that the dismissal of his earlier lawsuit against Lauren was res judicata as to the present lawsuit by him against Jay, who was not a party to either the prior lawsuit or the settlement between him and Lauren; (2) when it found that "the peremptory exception of res judicata should have been granted as a second lawsuit of this matter would be arising out of the same transaction and occurrence that was the subject matter of the current litigation[;]" and (3) when it sustained the exception of res judicata and dismissed his lawsuit against Jay.

For the first time in this litigation, Jay has filed a peremptory exception of no cause of action in this court. In his motion, Jay contends that James has failed to state any cause of action against him based on either the general tort of invasion of privacy or the Electronic Surveillance Act. Accordingly, he asks this court to sustain his peremptory exception of no cause of action and dismiss James's petition with prejudice.

NO CAUSE OF ACTION

It is well recognized that the peremptory exception of no cause of action may be filed in the appellate court. La.Code Civ.P. art. 2163 ; Francis v. Lake Charles Am. Press , 262 La. 875, 265 So.2d 206 (1972). Because a determination of this peremptory exception in Jay's favor would potentially terminate this litigation and make our analysis of the res judicata issue unnecessary, we will first address Jay's peremptory exception of no cause of action.

In Nizamutdinova v. Kappa Sigma Fraternity , 18-886, pp. 8-9 (La.App. 3 Cir. 10/2/19), 280 So.3d 1003, 1009–10, this court stated:

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Its function "is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading." Everything on Wheels Subaru, Inc. v. Subaru S., Inc ., 616 So.2d 1234, 1235 (La.1993). "No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." La.Code Civ.P. art. 931. "Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial." Indus. Cos., Inc. v. Durbin , 02-665, p. 7 (La. 1/28/03), 837 So.2d 1207, 1213. "All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff." City of New Orleans v. Bd. of Dirs. of La. State Museum , 98-1170, p. 9 (La. 3/2/99), 739 So.2d 748, 755.

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.

Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.

The burden of demonstrating that the petition states no cause of action is upon the mover. ... The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief.

Ramey [v. DeCaire, 03-1299 (La. 3/19/04) ], 869 So.2d [114,] 118-19 (citations omitted).

In City of New Orleans , 739 So.2d at 756, our supreme court stated:

An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. [ City of New Orleans v. ] Board of Comm'rs of Orleans Levee Dist ., [93-690 (La. 7/5/94),] 640 So.2d [ ] 237. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law.

In the present case, James's petition seeks damages from Jay based upon invasion of privacy and violations of the Electronic Surveillance Act. We will address those assertions individually.

Invasion of Privacy

Jay makes a twofold argument, urging that James's petition fails to state a cause of action for invasion of privacy. He argues that James's petition fails to allege any public disclosure of private facts and further fails to allege that Jay's conduct was either objectively unreasonable or that it seriously interfered with any privacy interest of James.

In Norris v. King , 355 So.2d 21, 23 (La.App. 3 Cir. 1978), cert. denied , 439 U.S. 995, 99 S.Ct. 596, 58 L.Ed.2d 669 (1978) (footnote omitted), this court stated:

The cause of action known as "invasion of privacy" has long been recognized and pronounced by the jurisprudence of this State. Tooley v. Canal Motors, Inc ., 296 So.2d 453 (La.App. 4 Cir. 1974) described the right of privacy as follows:

"... ‘the right to be let alone’ and as ‘the right to live one's life in seclusion without being subjected to unwarranted and undesirable publicity’."

"As appears from the cited cases and as discussed at length in the Comment at 28 La.Law Rev. (April 1968) malicious intent on the part of the defendant is not a necessary element in the prosecution of an invasion of privacy claim. If the defendant's conduct is unreasonable and seriously interferes with plaintiff's privacy the invasion is actionable."

This tort has usually been associated with conduct falling into one or more of the following classifications:

(1) Intrusion ( Lucas v. Ludwig , 313 So.2d 12 (La.App. 4 Cir. 1975), certiorari denied , 318 So.2d 42 (La.) );

(2) Public disclosure of private facts ( Lambert v. Dow Chemical Co ., 215 So.2d 673 (La.App. 1 Cir. 1968) ; Hamilton

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