The opinion
DWAYNE ALEXANDER * NO. 2019-CA-0778
VERSUS *
COURT OF APPEAL
LOUISIANA STATE BOARD *
OF PRIVATE INVESTIGATOR FOURTH CIRCUIT
EXAMINERS, PHYLLIS *
GLAZER, JAMES P. STATE OF LOUISIANA
ENGLADE, LANCE *******
WALLACE, ANNETTE
KOVAC, AND MEEKS AND
ASSOCIATES
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-00711, DIVISION “D”
Honorable Nakisha Ervin-Knott, Judge
******
Judge Terri F. Love
******
(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A.
Brown)
BROWN, J., CONCURS IN THE RESULT
Dwayne Alexander
1515 South Salcedo Street
P.O. BOX 791407
New Orleans, LA 70179
PLAINTIFF/APPELLANT, PRO SE
Donald C. Douglas, Jr.
THE DOUGLAS LAW FIRM, LLC
1070 West Causeway Approach, Suite B
Mandeville, LA 70471
COUNSEL FOR PLAINTIFF/APPELLANT, DWAYNE ALEXANDER
Jeff Landry, Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
P. O. Box 94005
Baton Rouge, LA 70804—9005
AND
Davis B. Allgood
DAVIS B. ALLGOOD, ATTORNEY AT LAW
Special Assistant Attorney General
21950 Hoo Shoo Too Rd
Baton Rouge, LA 70817
COUNSEL FOR DEFENDANT/APPELLEE, LOUISIANA STATE
BOARD OF PRIVATE INVESTIGATOR EXAMINERS
Dennis J. Phayer
BURGLASS & TANKERSLEY, L.L.C.
5213 Airline Drive
Metairie, LA 70001-5602
COUNSEL FOR DEFENDANTS/APPELLEES, JAMES ENGLADE AND
LANCE WALLACE
S. Daniel Meeks
Phyllis E. Glazer
MEEKS & ASSOCIATES, LLC
3401 West Esplanade Avenue South, Suite 3
Metairie, LA 70002
COUNSEL FOR DEFENDANTS/APPELLEES, PHYLLIS E. GLAZER
AND MEEKS AND ASSOCIATES, L.L.C.
Jeff Landry, Attorney General
LOUISIANA DEPARTMENT OF JUSTICE
P. O. Box 94005
Baton Rouge, LA 70804—9005
AND
Deborah A. Villio
Special Assistant Attorney General
Michael L. Fantaci
James C. Raff
LEBLANC FANTACI VILLIO, LLC
3421 N. Causeway Blvd., Suite 201
Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLEE, ANNETTE KOVAC
AFFIRMED IN PART; REVERSED IN PART; REMANDED
April 1, 2020
TFL
DLD
This appeal arises from a suit for fraud and defamation. The plaintiff has a
lengthy history of filing numerous lawsuits alleging defamation based on the use of
a document as evidence in other pending legal actions. In the present matter, the
plaintiff contends the defendants defamed him while in the course and scope of
working on another, separate lawsuit. The defendants filed numerous exceptions
and a special motion to strike. Because the parallel suit in which the alleged fraud
and defamation took place remains pending, the trial court found the suit
premature. The trial court also granted a special motion to strike. Plaintiff’s
claims were dismissed without prejudice and he was ordered to pay attorney’s fees.
We find the trial court correctly dismissed the plaintiff’s claims as premature
because the underlying matter remains pending. We find that the trial court erred
by dismissing the motion for sanctions pursuant to La. C.C.P. art. 863. As such,
we remand the matter to the trial court for a determination on those sanctions, as
well as for an increase in sanctions based on the special motion to strike. Upon
review, we deem the plaintiff’s appeal frivolous, such that the award of damages,
1
attorney’s fees, and costs is warranted. The trial court’s judgment is affirmed in
part, reversed in part, and remanded for further proceedings consistent with this
opinion.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Dwayne Alexander filed suit against a group of defendants contending that
they conspired to commit fraud and defamation. The facts leading up to this suit
were summarized in a previous appeal to this Court as follows:
In November, 1997, Mr. Alexander obtained a
license to practice as a private investigator from the
Board. Until November 2006, he held a valid private
investigator license. When he was licensed, Mr.
Alexander was subject to the rules and regulations
governing the practice of private investigators, as
promulgated and enforced by the Board and set forth in
La. R.S. 37:3501 et seq. (“the P.I. Statutes”).
Soon after obtaining his license, Mr. Alexander
formed his own private investigator company, World
Wide Detective Agency, Inc. (“World Wide”); and he
employed other investigators to work for him. In 2000,
Mr. Alexander began performing contract work for the
City of New Orleans (the “City”), investigating worker’s
compensation claims. In 2006, Mr. Alexander entered
into a contract with the City’s third party claims
administrator, Cannon Cochran Management Services,
Inc. (“CCMSI”), to become their Disadvantage Business
Enterprise (“DBE”) partner. From 2006 to February
2009, Mr. Alexander continued to investigate worker’s
compensation claims for the City under his DBE contract
with CCMSI. In November 2006, Mr. Alexander decided
not to renew his private investigator license and allowed
his license to expire. See La. R.S. 37:3517. According to
Mr. Alexander, his work for the City under the DBE
contract with CCMSI did not require him to be licensed
as a private investigator given the exemptions
enumerated in La. R.S. 37:3503(8)(b)(i), (iv), and (viii).
Before his license expired in 2006, Mr. Alexander
received two notices from the Board that complaints had
been filed against him. Both complaints—the Phenix and
Caesar complaints—involved allegations of professional
2
misconduct against Mr. Alexander. The Board opened
investigations into the two complaints, and Mr.
Alexander was provided the opportunity to respond to the
complaints. As of November 14, 2006, the date Mr.
Alexander’s license expired, the Board’s investigation of
the complaints was not completed. On December 6,
2006, the Board sent a letter to Mr. Alexander informing
him that the two complaints filed against him had not
been resolved as of the date that his license expired and
that his license would not be renewed until a hearing was
held with the Board’s investigatory officer. The letter
further informed Mr. Alexander of the possibility that he
“may have violated state criminal law during one of those
investigations” and that the matter would be turned over
to the State Police for investigation.
On February 16, 2009, the Board received a
complaint letter and a large binder (“the Centanni
Binder”) from a private investigator, Wayne Centanni. In
the letter, Mr. Centanni complained that Mr. Alexander
had been conducting private investigation work with
CCMSI for the City without holding a valid license; and
Mr. Centanni requested that the Board conduct a full
investigation into Mr. Alexander and his business
dealings. The Centanni Binder contained a background
investigation of Mr. Alexander and his private
investigator company, which consisted of a large volume
of personal and professional information that Mr.
Centanni had compiled from various sources. The
Centanni Binder also included records obtained from the
Board through a public records request filed by Mr.
Centanni on February 12, 2009. The Board’s records
disclosed information about Mr. Alexander’s license and
his expunged criminal convictions, all of which Mr.
Centanni included in the Centanni Binder.
Mr. Centanni sent copies of the letter and the
Centanni Binder to CCMSI, the City Attorney’s Office,
the Metropolitan Crime Commission (“MCC”), Lee Zurik
at WWL–TV, and several others. Upon receiving the
Centanni Binder, CCMSI contacted Mr. Alexander and
held a meeting with him. At the meeting, Mr. Alexander
informed of the Centanni Binder and its contents.
Subsequently, in February 2009, Mr. Alexander’s DBE
contract with CCMSI and the City was terminated.
3
On February 27, 2009, the Board issued a cease
and desist order directed to Mr. Alexander, which stated
as follows:
Pursuant to the authority of La. R.S. 37:3522, the
Louisiana State Board of Private Investigator
Examiners orders that Dwayne Alexander, who the
Board finds to be engaged in the practice of private
investigation in the State of Louisiana in violation
of La. R.S. 37:3500 et seq., be and is hereby
ordered to cease and desist from such activity.
Annette Kovac, the Board’s Chairman, signed the
cease and desist order. On March 4, 2009, the Board’s
Executive Director, Mr. Englade, hand-delivered the
cease and desist order to Mr. Alexander.
On May 12, 2009, Mr. Alexander sent two letters to
the Board complaining that its actions—disclosing
personal, confidential records to Mr. Centanni and
issuing the cease and desist order without a hearing—
resulted in the loss of his contract with CCMSI and the
City. Mr. Alexander also filed a formal complaint with
the Board against Mr. Centanni and submitted a public
records request for the documents the Board furnished to
Mr. Centanni.
In July 2009, Mr. Alexander filed suit against Mr.
Centanni in Orleans Parish Civil District Court (“CDC”)
alleging unfair trade practices. Mr. Alexander also filed
suit against CCMSI in United States District Court for
the Eastern District of Louisiana alleging wrongful
termination. Within a year of the lawsuits being filed,
both were dismissed.
In January 2011, Mr. Alexander worked a contract job
investigating a worker’s compensation claim for the St.
Charles Parish School Board (the “School Board”). In
May 2011, the MCC contacted the St. Charles Parish
School Board Superintendent (the “Superintendent”) after
receiving an anonymous tip that Mr. Alexander was
conducting private investigations in St. Charles Parish
without a valid license. The MCC informed the
Superintendent that Mr. Alexander lacked a valid license
to perform private investigator work and that, on
February 27, 2009, he was issued a cease and desist
order. The MCC also provided information about Mr.
Alexander’s criminal background. Based on the
information provided by the MCC, the Superintendent
4
contacted the St. Charles Parish Sheriff’s Office and
requested that an investigation be conducted into whether
Mr. Alexander had a valid private investigator license at
the time he performed work for the School Board.
In the course of his investigation, Captain Donald
Smith of the St. Charles Parish Sheriff’s Office contacted
the Board by email and explained the nature of his
investigation. Captain Smith requested that the Board
provide documentation as to whether Mr. Alexander held
a valid private investigator license in January 2011. He
also requested that the Board provide the relevant state
statutes setting forth the penalty for conducting private
investigations without a valid private investigator license.
In response to his inquiry, Captain Smith received a
phone call from Mr. Englade. Mr. Englade informed
Captain Smith that the Board had served Mr. Alexander
with the cease and desist order in March 2009 and that
order was still in effect. Mr. Englade further informed
Captain Smith that if, in fact, Mr. Alexander had
conducted private investigations in St. Charles Parish in
2011, he would be in violation of the P.I. Statutes. After
that discussion, the Board faxed to Captain Smith a copy
of the cease and desist order, the table of contents for the
P.I. Statutes (La. R.S. 37:3500–25), and the statute
providing the penalties for violating the P.I. Statutes (La.
R.S. 37:3521). Based on his investigation, Captain Smith
completed an arrest warrant affidavit, charging Mr.
Alexander with a violation of La. R.S. 37:35206 by
providing contract or private investigator services to the
Board without possessing a valid license. On June 23,
2011, an arrest warrant for Mr. Alexander was signed and
issued by the Twenty–Ninth Judicial District Court in St.
Charles Parish (“29th JDC”).
In October 2011, Mr. Alexander discovered the
outstanding arrest warrant for him in St. Charles Parish.
Upon discovering the arrest warrant, he turned himself in
to the police. At the time of his arrest (on October 24,
2011), Mr. Alexander learned that he was being charged
with conducting private investigation without a valid
private investigator license. On the next day, October 25,
2011, the Times–Picayune newspaper reported on Mr.
Alexander’s arrest as a result of the investigation by the
St. Charles Parish Sheriff’s Office into his work for the
School Board in January 2011.
5
On December 19, 2012, the 29th JDC judge ordered
the State to produce to Mr. Alexander the State’s
evidence file in the criminal case against him on the
charge of violating La. R.S. 37:3520.
On January 14, 2013, Mr. Alexander filed the instant
suit against the Defendants. Mr. Alexander averred in his
petition that the Board and Mr. Englade, individually and
in his official capacity, violated his constitutional rights
and defamed him by issuing the cease and desist order in
2009. He also averred that the Defendants violated state
public records laws and Board’s regulations by disclosing
his expunged criminal records. Finally, he averred that
the Defendants ’defamatory and tortious conduct against
him was continuing and undiscoverable from 2009 until
December 19, 2012, when he received the State’s
evidence in the criminal case against him in the 29th
JDC.
On March 5, 2013, the Defendants filed multiple
exceptions, including no cause of action, prescription,
and improper venue. Following a hearing on the
exceptions, the trial court granted the Defendants ’
exception of no cause of action and allowed Mr.
Alexander twenty days to amend his petition to state a
cause of action. The trial court also granted the
Defendants ’exception of improper venue as to Mr.
Alexander’s claims under the Public Records Act. The
trial court denied the Defendants ’exception of
prescription.
On May 31, 2013, Mr. Alexander filed a first
supplemental and amended petition. In his amended
petition, Mr. Alexander enumerated the following five
causes of action: (1) slander and defamation (2006–
2013); (2) defamation and slander (2011–2013); (3)
continuing defamation and slander per se; (4) damages
for violation of state law affecting petitioner; and (5)
breach of duty to investigate and disseminate truthful
information.
On July 29, 2013, the Defendants filed a second set of
exceptions, a motion for sanctions and attorney’s fees,
and a motion to strike pursuant to La. C.C.P. art. 971. On
September 20, 2013, these matters were heard by the trial
court. In its October 16, 2013 judgment, the trial court
overruled the Defendants ’exceptions of no cause of
6
action and prescription and denied their motion to strike
and motion for sanctions.
On December 10, 2013, the Defendants filed an
answer and a reconventional demand. In their answer, the
Defendants asserted multiple affirmative defenses,
including discretionary immunity and quasi-judicial
immunity. In their reconventional demand, the
Defendants asserted a claim of abuse of process against
Mr. Alexander.
On September 18, 2014, Mr. Alexander filed a motion
for partial summary judgment on the issue of whether he
was exempt from the P.I. Statutes, pursuant to La. R.S.
37:3503, while working under his DBE contract with the
City from 2006 to 2009 and while working for the St.
Charles Parish School Board in 2011. On October 8, 201
[sic], the trial court denied Mr. Alexander’s motion for
partial summary judgment.
On November 3, 2014, the Defendants filed a motion
for summary judgment seeking dismissal of Mr.
Alexander’s claims and a judgment against Mr.
Alexander on their reconventional claim of abuse of
process. In their summary judgment motion, the
Defendants also re-urged their exception of prescription
and asserted quasi-judicial immunity and conditional
privilege as a bar to Mr. Alexander’s claims against them.
At the November 14, 2014 hearing, the trial court
overruled the exception of prescription, finding no reason
to revisit the issue, and denied the motion for summary
judgment, finding there were issues of material fact
appropriate for a jury to resolve.
In December 2014, a jury trial was held in this matter.
At the close of Mr. Alexander’s evidence and before the
submission of the case to the jury, the Defendants moved
for a directed verdict and dismissal of Mr. Alexander’s
claims based on prescription. After brief argument, the
trial court found “sufficient evidence of an interruption of
prescription” and denied the Defendants ’motion for
directed verdict. On the following day, the trial court
instructed the jury on the applicable law and submitted a
general verdict form with multiple jury interrogatories to
the jury. The jury instructions and interrogatories set
forth the following four causes of action against the
Defendants for the jury to decide: (1) defamation; (2)
abuse of process; (3) intentional infliction of emotional
7
distress; (4) violation of a constitutional right under color
of law. Neither Mr. Alexander nor the Defendants raised
any objection to the jury instructions or jury
interrogatories presented to the jury.
On December 18, 2014, the jury returned its verdict.
The jury found the Defendants not liable on two of the
four claims—intentional infliction of emotional distress
and violation of Mr. Alexander’s constitutionally
protected rights. The jury found the Defendants liable to
Mr. Alexander for the other two claims—defamation and
abuse of process—and awarded a total of $300,000 in
damages. On January 5, 2015, the trial court entered
judgment in accord with the jury’s verdict. Both the
Defendants and Mr. Alexander filed motions for new
trial. On March 10, 2015, the trial court denied both
motions.
On January 30, 2015, Mr. Alexander filed a petition to
annul the jury verdict based on fraud and ill practice
under La. C.C.P. art. 2004. In his petition to annul, Mr.
Alexander alleged that the jury verdict resulted from
perjured testimony and fabricated evidence presented by
the Defendants at trial. In response, the Defendants filed
a motion for summary judgment, arguing that Mr.
Alexander’s allegations of misconduct should have been
raised in a motion for mistrial. On May 8, 2015, the trial
court granted the Defendants ’motion for summary
judgment and dismissed with prejudice Mr. Alexander’s
petition to annul the jury verdict.
Alexander v. La. State Bd. of Private Investigator Exam’rs, 15-0537, pp. 2-12 (La.
App. 4 Cir. 2/17/17), 211 So. 3d 544, 549–54, writ denied, 17-0571 (La. 5/26/17),
221 So. 3d 855, and writ denied, 17-0607 (La. 5/26/17), 221 So. 3d 857. On
review, this Court determined that Mr. Alexander’s claims based on pre-2011
actions and his abuse of process claims were prescribed. Id., 15-0537, p. 48, 211
So. 3d at 573. The remaining judgment was affirmed. Id.
Mr. Alexander then filed a Petition for Fraud and Defamation against the
Louisiana State Board of Private Investigator Examiners (“LSBPIE”), Phyllis
8
Glazer (individually and as the attorney for LSBPIE), James Englade (individually
and as the Executive Director for LSBPIE), Annette Kovac (individually and as a
board member of LSBPIE), Lance Wallace (individually and as a board member of
LSBPIE), and Meeks & Associates, LLC (“Meeks”) (Ms. Glazer’s employer)
(collectively “Defendants”) alleging that the Defendants conspired to defame him
by “circulating a false Cease and Desist Order”1 and fraudulently inducing him to
settle claims in a pending lawsuit tangentially related to the factual scenario
summarized above.
Ms. Kovac filed an exception of No Cause of Action. Attorney Glazer and
Meeks filed a Motion for Sanctions and Injunctive Relief as well as Exceptions of
Prematurity, Lis Pendens, and Improper Venue. Mr. Englade and Mr. Wallace
filed Exceptions of No Cause of Action, Prematurity, and Vagueness. Likewise,
LSBPIE filed Exceptions of No Cause of Action, Prematurity, and Vagueness.
LSBPIE also filed a Special Motion to Strike pursuant to La. C.C.P. art. 971.
Mr. Alexander then filed a First Supplemental and Amending Petition
adding Davis Allgood, as attorney for LSBPIE, as a defendant. Mr. Alexander
attempted to file the First Supplemental and Amending Petition ex parte. Most of
the defendants objected.2 Contending a conflict of interest prevented Attorney
Glazer and Meeks from serving as counsel, Mr. Alexander filed a Motion to
Disqualify them. Mr. Alexander filed a Motion for Insufficiency of Service of
Process of the Defendants’ Exceptions and Motion to Strike.
1
The cease and desist order was mentioned and attached to filings in the underlying litigation.
Essentially, Mr. Alexander files a lawsuit when an attorney mentions the cease and desist order
or attaches a copy to a filing as evidence.
2
It is unclear from the record whether the trial court allowed the filing of First Supplemental and
Amending Petition.
9
Following these numerous filings, the trial court conducted a thorough
hearing and issued a judgment containing the following rulings:
1) The peremptory exceptions filed by LSBPIE and Ms.
Kovac, as well as the dilatory exceptions filed by Mr.
Englade, Mr. Wallace, Attorney Glazer, and Meeks
are sustained due to the pendency of case 2018-2072
in the trial court;
2) All remaining exceptions are overruled as moot;
3) Motion for Sanctions filed by Attorney Glazer and
Meeks is denied without prejudice;
4) Motion to Transfer is denied;
5) Motion to Disqualify Attorney Glazer and Meeks is
denied;
6) Mr. Alexander’s Exception of Insufficiency of Service
of Process is denied;
7) LSBPIE’s Special 971 Motion to Strike is granted;
8) Mr. Alexander is ordered to pay LSBPIE $1,500 for
attorney’s fees; and
9) Mr. Alexander’s claims are dismissed without
prejudice.
Mr. Alexander’s notice of appeal followed.
Attorney Glazer and Meeks filed an Answer to Mr. Alexander’s appeal
seeking reversal of the trial court’s denial of sanctions pursuant to La. C.C.P. art.
863, an injunction preventing Mr. Alexander from filing further suits, attorney’s
fees and costs, and damages for a frivolous appeal. Mr. Englade and Mr. Wallace
also filed an Answer requesting damages and costs for defending a frivolous
appeal. LSBPIE filed an Answer seeking an increase in the attorney’s fees award
by the trial court pursuant to La. C.C.P. art. 971 based on defending the appeal, as
well as attorney’s fees and costs for the frivolous appeal.
PREMATURITY3
3
Though the trial court’s judgment specifically states:
10
Mr. Alexander frames the central issue in his self-authored appellant brief as
follows: “The trial court committed legal error when it failed to consider that the
under lying case . . . had decided the issue of the cease and desist order’s falsity,
permitting the instant defamation action.” However, Mr. Alexander is essentially
questioning the legality of the trial court’s granting the exception of prematurity.
“An exception is a means of defense, other than a denial or avoidance of the
demand, used by the defendant, whether in the principal or an incidental action, to
retard, dismiss, or defeat the demand brought against him.” La. C.C.P. art. 921.
Prematurity is a dilatory exception. La. C.C.P. art. 926. “If the dilatory exception
pleading prematurity is sustained, the premature action, claim, demand, issue or
theory shall be dismissed.” La. C.C.P. art. 933(A).
This Court previously summarized the law on prematurity as follows:
A suit is premature if it is brought before the right
to enforce it accrues. La.Code Civ. Proc. Art. 423; see
also Moreno v. Entergy Corp., 10–2268, p. 3
(La.2/18/11), 64 So.3d 761, 763, citing La.Code Civ.
Proc. Art. 926 (The dilatory exception of prematurity
questions whether the cause of action has matured to the
point where it is ripe for judicial determination.)
“Prematurity is determined by the facts existing at the
time the suit is filed.” Sevier v. U.S. Fidelity & Guar.
The peremptory exceptions filed by the defendant Louisiana State
Board of Private Examiners ( Board ) and Annette Kovac, and the
dilatory exceptions filed by the defendants James P. Englade,
Lance Wallace, Phyllis Glazer, and Meeks and Associates, L.L.C.,
are sustained because of the pendency of Suit No, 2018-2072;
we pretermit a discussion of the exceptions other than prematurity, as resolution of the exception
concludes the matter. However, out of an abundance of caution, this Court notes that “[i]t is
well-established that a cause of action for defamation based on allegations or statements made in
a judicial proceeding does not arise until those judicial proceedings have reached a final and
definitive disposition.” Hillman v. U.S. Aviation Underwriters, 509 So. 2d 125, 127 (La. App.
1st Cir. 1987). See also Smith v. Barial, 18-0573, p. 7 (La. App. 4 Cir. 12/19/18), ___ So. 3d
___, ___, 2018 WL 6683311, *4 (“well-settled jurisprudence establishes that an action against a
party arising out of pending judicial proceedings cannot be brought until the pending
proceedings have been terminated”).
11
Co., 497 So.2d 1380, 1382 (La.1986). Evidence may be
introduced to support or controvert the exception, when
the grounds do not appear from the petition. La.Code
Civ. Proc. Art. 930. We review a judgment sustaining a
dilatory exception of prematurity for manifest error. See
Pinegar v. Harris, 08–1112, p. 10 (La.App. 1 Cir.
6/12/09), 20 So.3d 1081, 1088.
Jefferson Door Co., Inc. v. Cragmar Const., L.L.C., 11-1122, p. 3 (La. App. 4 Cir.
1/25/12), 81 So. 3d 1001, 1004. “However, when resolution of an exception of
prematurity involves a question of law, the appellate court undertakes a de novo
review.” Landis Const. Co., LLC v. Reg’l Transit Auth., 15-0854, p. 6 (La. App. 4
Cir. 5/25/16), 195 So. 3d 598, 602.
“It is well-established that a cause of action for defamation based on
allegations or statements made in a judicial proceeding does not arise until those
judicial proceedings have reached a final and definitive disposition.” Hillman, 509
So. 2d at 127. See also Ortiz v. Barriffe, 523 So. 2d 896, 898 (La. App. 4th Cir.
1988); Marionneaux v. King, 331 So. 2d 180, 182 (La. App. 1st Cir. 1976).
Mr. Alexander’s claims of alleged defamation arose within the context of
suit 2018-2072 currently pending before the trial court. This fact is undisputed
save for Mr. Alexander’s assertion that the matter is not premature because the
cease and desist order was previously labeled as defamatory. Alexander, 15-0537,
211 So. 3d 544. Accordingly, as the judicial proceeding giving rise to Mr.
Alexander’s allegations of defamation has not yet concluded, the trial court did not
err by granting the Exception of Prematurity and dismissing Mr. Alexander’s suit.
SPECIAL MOTION TO STRIKE
12
Mr. Alexander contends that the trial court erred by granting LSBPIE’s
Special Motion to Strike pursuant to La. C.C.P. art. 971 because there was no
service of the motion and the statute does not apply. Specifically, in regards to
service of the motion, Mr. Alexander states that while there is a signed return on
the motion in the record, the signature does not match his own. He contends that
“a person identified as ‘A Dwuane’” signed the return.
La. C.C.P. art. 1313 provides, in pertinent part, that
A. Except as otherwise provided by law, every pleading
subsequent to the original petition, and every pleading
which under an express provision of law may be
served as provided in this Article, may be served
either by the sheriff or by:
(1) Mailing a copy thereof to the counsel of record, or
if there is no counsel of record, to the adverse
party at his last known address, this service being
complete upon mailing.
* * *
C. Notwithstanding Paragraph A of this Article, if a
pleading or order sets a court date, then service shall
be made either by registered or certified mail or as
provided in Article 1314, or by actual delivery by a
commercial courier.
The record contains a signed return on service of LSBPIE’s Special Motion
to Strike. We find the record dispositive on the issue of service. Therefore, the
trial court did not err by denying Mr. Alexander’s Motion for Insufficiency of
Service of Process as it relates to the Special Motion to Strike.4
Merits
4
Mr. Alexander has a history of contesting service. See Alexander v. Blue Williams, L.L.P., 18-
0776, p. 11 (La. App. 4 Cir. 1/23/19), ___ So. 3d ___, ___, 2019 WL 302078, *7, writ denied,
19-00432 (La. 9/6/19), 278 So. 3d 370, and writ denied, 19-00435 (La. 9/6/19), 278 So. 3d 372,
and writ denied, 19-00431 (La. 9/6/19), 278 So. 3d 968.
13
Notwithstanding service of the Special Motion to Strike, Mr. Alexander
avers that LSBPIE failed to demonstrate that La. C.C.P. art. 971 substantively
applies to the instant matter.
“La. C.C.P. art. 971 was enacted ‘to screen out meritless claims pursued to
chill one’s constitutional rights under the First Amendment of the United States
Constitution to freedom of speech and press.’” Shelton v. Pavon, 16-0758, p. 3
(La. App. 4 Cir. 2/15/17), 212 So. 3d 603, 606 (quoting Lee v. Pennington, 02-
0381, p. 4 (La. App. 4 Cir. 10/16/02), 830 So. 2d 1037, 1041; Melius v. Keiffer, 07-
0189, p. 2 (La. App. 4 Cir. 3/12/08), 980 So. 2d 167, 170. La. C.C.P. art. 971(A)
provides:
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.
“The party filing the special motion to strike has the initial burden of proving that
‘the cause of action arises from an act in the exercise of his right of free speech
regarding a public issue.’” Shelton, 16-0758, p. 3, 212 So. 3d at 607 (quoting
Melius, 07-0189, p. 3, 980 So. 2d at 171). Then, “[i]f the mover meets this
threshold requirement, the burden shifts to the party opposing the motion and must
demonstrate a probability of success on the claim.” Id., 16-0758, pp. 3-4, 212 So.
3d at 607.
Mr. Alexander contends that La. C.C.P. art. 971 does not apply to the
present matter. However, the statute provides, in pertinent part:
14
(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:
(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.
La. C.C.P. 971(F)(1).
Mr. Alexander’s defamation claims arise from the context of written
statements and representations during the 2018-2072, the still pending litigation.
Additionally, as LSBPIE is a public state board, the communications at issue in the
suit wherein Mr. Alexander alleges improper activities, are a matter of public
concern. Thus, LSBPIE met the initial burden of proof. The burden then shifted to
Mr. Alexander to demonstrate a probability of success on his claim. The trial court
dismissed Mr. Alexander’s claims based on prematurity, thereby negating his
probability of success. Accordingly, we do not find that the trial court erred by
granting LSBPIE’s Special Motion to Strike.
Increase in Sanctions for La. C.C.P. art. 971
In its Answer to the appeal, LSBPIE contends that we should increase the
amount of attorney’s fees awarded regarding the Special Motion to Strike based on
defending this appeal. We agree. La. C.C.P. art. 971(B) states that “a prevailing
party on a special motion to strike shall be awarded reasonable attorney fees and
costs.” As the prevailing party on appeal, LSBPIE is entitled to an increase in
attorney’s fees and costs. Therefore, the matter is remanded for the trial court to
15
determine additional reasonable attorney’s fees and costs based on the appeal.
EXCEPTIONS OF ANNETTE KOVAC
Mr. Alexander asserts that the trial court erred by granting Ms. Kovac’s
Exception of No Cause of Action because he was not served with the pleading.
The trial transcript clearly reflects that once the trial court deemed Mr.
Alexander’s suit was premature and also granted LSBPIE’s Special Motion to
Strike, the remaining exception filed by Ms. Kovac was moot. The following
colloquy occurred between counsel for Ms. Kovac and the trial court:
MR. FANTACI:
Before we move on, I’ve been very patient. I’ve let
everybody else speak. My client had an exception of no
cause of action pending. In light of your ruling that this
lawsuit is premature and can’t stand, I just want to clarify
that all of the claims against my client, as well, are being
dismissed.
JUDGE ERVIN-KNOTT:
They are.
MR. FANTACI:
And I guess my cause of action is moot as a result.
JUDGE ERVIN-KNOTT:
As a result.
MR. FANTACI:
I want that to be clear for the record.
JUDGE ERVIN-KNOTT:
It’s like a domino effect. Of course Mr. Alexander
can go before the suit that’s pending before -- that arises
out of the actions that he’s claiming, the 2018, which is
the basis of the suit that’s pending here, that goes before
Judge Griffin. And I understand their motions to transfer
to "F" and then to "C", whatever it is. The one that’s here
is done.
MR. ALLGOOD:
16
So what I would propose. Your Honor, is to submit
a judgment on all of the exceptions and the motion to
strike, disposing of all of them, and granting the
exceptions and a motion to strike, leaving a blank for my
attorney's fees, and I will submit an affidavit with
attorney’s fees related only to the motion to strike.
Further, irrespective of whether Mr. Alexander was served with Ms. Kovac’s
Exception of No Cause of Action, exceptions of no cause of action were also filed
by LSBPIE, Mr. Englade, and Mr. Wallace. Thus, we find Mr. Alexander’s
contention lacks merit.
SANCTIONS
Ms. Glazer and Meeks filed an Answer to Mr. Alexander’s appeal asserting
that the trial court erred by denying their Motion for Sanctions pursuant to La.
C.C.P. art. 863.
La. C.C.P. art. 863 provides:
A. Every pleading of a party represented by an attorney
shall be signed by at least one attorney of record in his
individual name, whose address shall be stated. A
party who is not represented by an attorney shall sign
his pleading and state his address.
B. Pleadings need not be verified or accompanied by
affidavit or certificate, except as otherwise provided
by law, but the signature of an attorney or party shall
constitute a certification by him that he has read the
pleading, and that to the best of his knowledge,
information, and belief formed after reasonable
inquiry, he certifies all of the following:
(1) The pleading is not being presented for any
improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost
of litigation.
(2) Each claim, defense, or other legal assertion in
the pleading is warranted by existing law or by a
nonfrivolous argument for the extension,
modification, or reversal of existing law.
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(3) Each allegation or other factual assertion in the
pleading has evidentiary support or, for a
specifically identified allegation or factual
assertion, is likely to have evidentiary support after
a reasonable opportunity for further investigation
or discovery.
(4) Each denial in the pleading of a factual
assertion is warranted by the evidence or, for a
specifically identified denial, is reasonably based
on a lack of information or belief.
C. If a pleading is not signed, it shall be stricken unless
promptly signed after the omission is called to the
attention of the pleader.
D. If, upon motion of any party or upon its own motion,
the court determines that a certification has been made
in violation of the provisions of this Article, the court
shall impose upon the person who made the
certification or the represented party, or both, an
appropriate sanction which may include an order to
pay to the other party the amount of the reasonable
expenses incurred because of the filing of the
pleading, including reasonable attorney fees.
E. A sanction authorized in Paragraph D shall be
imposed only after a hearing at which any party or his
counsel may present any evidence or argument
relevant to the issue of imposition of the sanction.
F. A sanction authorized in Paragraph D shall not be
imposed with respect to an original petition which is filed
within sixty days of an applicable prescriptive date and
then voluntarily dismissed within ninety days after its
filing or on the date of a hearing on the pleading,
whichever is earlier.
G. If the court imposes a sanction, it shall describe the
conduct determined to constitute a violation of the
provisions of this Article and explain the basis for the
sanction imposed.
The article “imposes a duty of reasonable inquiry on a party—including a pro se
litigant—signing pleadings.” Mendonca v. Tidewater, Inc., 11-0318, p. 8 (La.
App. 4 Cir. 9/7/11), 73 So. 3d 407, 414.
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The trial court denied the Motion for Sanctions finding that the trial court
division for the underlying case, 2018-2072, should assess any La. C.C.P. art. 863
sanctions and or injunctions. “Appellate court review of the fact finding of an
Article 863 violation is under the manifest error standard.” Mendonca, 11-0318, p.
8, 73 So. 3d at 413.
Attorney Glazer and Meeks’ Motion for Sanctions filed with the trial court
was based upon Article 863 violations within Mr. Alexander’s filings in the present
matter, not the underlying matter. As such, we find the trial court erred by denying
the motion and instructing Attorney Glazer and Meeks to file for sanctions in the
underlying matter. Therefore, we remand the issue of sanctions to the trial court to
conduct a hearing and assess sanctions if deemed appropriate.5
FRIVOLOUS APPEAL
Attorney Glazer, Meeks, Mr. Englade, Mr. Wallace, and LSBPIE filed
Answers to Mr. Alexander’s appeal contending that the appeal was frivolous, such
that this Court should award damages, attorney’s fees, and costs.
La. C.C.P. art. 2133(A) states, in pertinent part, that:
An appellee shall not be obliged to answer the appeal
unless he desires to have the judgment modified, revised,
or reversed in part or unless he demands damages against
the appellant. In such cases, he must file an answer to the
appeal, stating the relief demanded, not later than fifteen
days after the return day or the lodging of the record
whichever is later.
Further, La. C.C.P. art. 2164 provides:
5
Attorney Glazer and Meeks also request that this Court issue an injunction against Mr.
Alexander to prevent the filing of further unnecessary suits. As the imposition of sanctions
pursuant to La. C.C.P. art. 863 is designed to “deter frivolous litigation,” we find no need to also
issue an injunction against Mr. Alexander. Keaty v. Raspanti, 03-1080, p.8 (La. App. 4 Cir.
2/4/04), 866 So. 2d 1045, 1051.
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The appellate court shall render any judgment which is
just, legal, and proper upon the record on appeal. The
court may award damages, including attorney fees, for
frivolous appeal or application for writs, and may tax the
costs of the lower or appellate court, or any part thereof,
against any party to the suit, as in its judgment may be
considered equitable.
“Appeals are always favored and, unless the appeal is unquestionably frivolous,
damages will not be granted.” Tillmon v. Thrasher Waterproofing, 00-0395, p. 8
(La. App. 4 Cir. 3/28/01), 786 So. 2d 131, 137. This Court further stated that “[a]n
appeal is frivolous if it does not present a substantial legal question, if the sole
purpose of the appeal is delay, or if the appealing counsel does not seriously
believe the view of the law that he advocates.” Id. However, “[t]his court is
reluctant to grant frivolous appeal damages because of the chilling effect it may
have on the appellate process.” Id.
Damages for a frivolous appeal will be awarded if the appellant is
attempting to delay the action, if the appellant does not believe what he is
advocating, or if the appeal presents no “‘substantial legal question.’” Hunter v.
Maximum Grp. Behavioral Servs., Inc., 10-0930, p. 6 (La. App. 4 Cir. 3/16/11), 61
So. 3d 735, 739 (quoting Tillmon, 00-0395, p. 8, 786 So. 2d at 137). “Damages for
frivolous appeal are properly awarded only when the proposition advocated is so
ridiculous or so opposed to rational thinking that it is evident beyond any doubt
that it is being deliberately professed for ulterior purposes.” Bottle Poetry, LLC v.
Doyle Rest. Grp. Co., LLC, 13-0406, p. 9 (La. App. 4 Cir. 1/15/14), 133 So. 3d 60,
67.
We find that Attorney Glazer, Meeks, Mr. Englade, Mr. Wallace, and
LSBPIE are entitled to an award of damages, attorney’s fees, and costs on appeal.
While Mr. Alexander filed his appellant brief pro se, he is not representative of the
20
average pro se litigant. As outlined in the appellee brief of Attorney Glazer and
Meeks, Mr. Alexander’s similar and indirectly related lawsuits filed at First City
Court and the Orleans Parish Civil District Court includes, but is not limited to:
1. Alexander v. Wayne R. Centanni and Centanni
Investigative Agency, CDC No. 09-07153, Div. “F-07”
(Unfair and Deceptive Trade Practices);
2. Alexander v. Cannon Cochran Management Services,
Inc. D/B/A CCMSI, Jerry Armatis, Thomas Brechtel, and
Carl Ayestas, CDC No. 09-07154, Div. “D-16”
(Retaliatory Discharge, Wrongful Termination, Overtime
Wages and Back Pay, Unjust Enrichment, and
Whistleblower Protection);
3. Alexander v. Cannon Cochran Management Services,
Inc., CDC No. 12 05255, Div. “L-06” (Discrimination);
4. Alexander v. Angella Myers, CDC No. 12-5254, Div.
“G-11” (Tortious Interference relative to CDC No. 12-
05255);
5. Alexander v. LSBPIE and its Executive Director,
James P. Englade, in his official capacity and
individually, Dennis J. Phayer, Nancy Marshall, Elliot
M. Lonker, Lance Guest, Frilot, L.L.C., Elizabeth
Doubleday, Deutsche Kerrigan, L.L.P., and Burglass &
Tankersley, L.L.C., CDC No. 13-00362, Div. “F-07”
(Defamation and Abuse of Process);
6. Alexander v. Carl Ayestas, CDC No. 13-09535, Div.
“A-16” (Defamation);
7. Alexander v. Angella Myers, CDC No. 13-10624, Div.
“M-13” (Tortious Interference regarding CDC No. 13-
09535);
8. Alexander v. Jerry Armatis, Myers Law Group, L.L.P.,
Angella H. Myers, and Mark C. Carver, First City Court
for the Parish of Orleans, No. 13-53519 (Invasion of
Privacy);
9. Alexander v. Lance S. Guest in his official and
individual capacity, and Office of Risk Management,
CDC No. 14-03062, Div. “N-08” (Defamation);
10. Alexander v. The City of New Orleans, Travelers Ins.
Co., Brian Thomas, Angela Myers, Myers Law Group,
Lawrence W. Gerguson & Associates, Lawrence
Ferguson, Mark C. Carver, Cannon Cochran
Management Services, Inc., Carlos O. Ayestas, Jr., Jerry
Armatis, CDC No. 14-04123, Div. “B-05” (Breach of
Contract);
21
11. Alexander v. Wayne R. Centanni, individually and
d/b/a, Centanni Investigative Agencies, David Parnell,
Jr., Lance Wallace, and James Englade, CDC No. 15-
00209, Div. “N-08” (Petition to Annul Judgment for
Fraud and Ill Practices regarding CDC No. 09-07153);
12. Alexander v. The Times-Picayune, L.L.C. and David
Hammer, CDC No. 15 11890, Div. “M-13” (Libel,
Slander, and Defamation);
13. Alexander v. Blue Williams, L.L.P., LSBPIE, Dennis
J. Phayer, David Parnell, Jr., Nancy J. Marshall, James
P. Englade, Elizabeth Doubleday, Deutsch Kerrigan,
L.L.P., Burglass & Tankersly, L.L.C., and Thomas G.
Buck, CDC No. 17-02215, Div. “I-14” (Defamation);
14. Alexander v. Blue Williams, L.L.P., Dennis J. Phayer,
David Parnell, Nancy J. Marshall, and La. State Board
of Private Investigator Examiners, CDC No. 17-05452,
Div. “I-14” (Defamation);
15. Alexander v. LSBPIE, Sher Garner Cahill Richter
Klein & Hilbert, L.L.C., Annette Kovac, Brandon W.
Keay, James M. Garner, Debra Fishchman, James P.
Englade, CDC No. 17-05546, Div. “I-14” (Defamation);
16. Alexander v. Office of Risk Management and Julian
S. Thompson, in his official capacity as The Director of
Risk Management, CDC No. 17-10372,Div. “J-15”
(Mandamus);
17. Alexander v. LSBPIE, Lane Wallace, Brett Tweedel,
Michael A. Thomas, The State of Louisiana through the
Board of Private Investigator Examiners, Sher Garner
Cahill Richter Klein McCallister Klien & Hilbert, L.L.C.,
Dennis Phayer, David Parnell, Lance Wallace, James P.
Englade, Del Hahn, Nancy Marshall, Sonia Mallet in her
capacity as the Director of Litigation for the Office of
the Attorney General for the State of Louisiana, Ryan
Luminais, Ronald Luminae, Elliot Lonker, Leblanc
Fantaci Villio, L.L.C., Jeff Landry, in his capacity as the
Attorney General for the State of Louisiana, Annette
Kovac, Delbert Hahn, Phyllis E. Glazer, James Garner,
Frilot, L.L.C., Debra Fischman, Michael L. Fantaci,
Elizabeth Doubleday, and Deutsch Kerrigan, L.L.P.,
CDC C/A No. 18-02072, Div. “I-14” (Defamation);
18. Alexander v. Gertraud G. Malmgren, James Young,
Peter Weilbacher, USAA Casualty Ins. Co., State Farm
Ins. Co., Lobman, Carnahan, Batt, Angelle, & Nader,
Stacy Estrada, and David Batt, CDC No. 2018-09910,
Div. “G-11” (Libel and Slander, Fraud and Fraud on the
Court, Conspiracy, Tortious Interference with Contract,
Intentional and Fraudulent Misrepresentations,
22
Intentional Infliction of Emotional Distress, and Mental
Anguish);
19. Alexander v. Jeffrey M. Landry, Stephen J. Oats,
Warren Orlando, Oat & Marino, Millard Mule,
Louisiana Citizens for Job Creators, Inc., Harvey Gulf
International Marine, L.L.C., Shane J. Guidry, and
David Allen, CDC No. 2018-10372, Div. “L-06” (Breach
of Contract);
20. Alexander v. LSBPIE, Phyllis Glazer, James P.
Englade, Lance Wallace, Annette Kovac, and
Meeks & Associates, CDC No. 2019-0711, Div. “I-14”
(Defamation); and
21. Alexander v. LSBPIE and James P. Englade in his
Official Capacity, and James P. Englade Individual
Capacity, CDC No. 2019-10301, Div. “L-06”
(Petition to Make Judgment Executory relative to CDC
No. 2013-0362).
The above list does not include Mr. Alexander’s numerous filings in the Federal
Court system. Because of his innumerable federal filings, the United States
District Court of the Eastern District of Louisiana issued the following order:
In addition to the positions stated above, certain
defendants also seek additional relief from the Court
relative to related further litigation instituted by Plaintiff
relating in some way to the investigation services
previously provided by him, and/or Worldwide Detective
Agency, Inc., to the City of New Orleans and/or CCMSI.
See, e.g., Rec. Doc. 20–1, pp. 24–25. Having carefully
considered the parties’ submissions, as well as the records
in the pertinent proceedings previously pending in this
Court, IT IS ORDERED that:
(1) Dwayne Alexander and Worldwide Detective Agency,
Inc. shall not hereafter file, in the United States District
Court for the Eastern District of Louisiana, any additional
complaint, motion, or other pleading that arises from or is
premised upon: (a) Alexander’s and/or Worldwide’s
private investigative services provided to the City of New
Orleans and/or CCMSI, (b) private investigation
licensing, (c) and/or any litigation regarding same,
without first seeking leave of Court to do so, and
certifying, in writing, that the proposed submission is not
frivolous, presented for an improper purpose, repetitive or
duplicative, has evidentiary support, and does not contain
any inappropriate, irrelevant, malicious, harassing and/or
23
insulting comments. Failure to comply with this order
may result in filings being stricken from the record and/or
the imposition of significant financial and/or other
sanctions, including payment of excess costs, expenses,
and any attorney’s fees under 28 U.S.C. §
1927 and/or Federal Rule of Civil Procedure 11.
(2) Dwayne Alexander or anyone acting on his behalf, or
on behalf of Worldwide Detective Agency, Inc., must give
written notice to any court or agency (including parish,
city, state and federal courts or agencies) of all prior and
pending litigation filed by Dwayne Alexander or
Worldwide Detective Agency, Inc. (or anyone acting on
his/its behalf) by appending to the petition or complaint a
written summary of all past and pending proceedings that
directly or indirectly relate to private investigation
services, private investigation licensing, or Cannon
Cochran Management Services, Inc., its employees or its
attorneys. Failure to comply with this order may result in
filings being stricken from the record and/or the
imposition of significant financial and/or other sanctions,
including payment of excess costs, expenses, and any
attorney’s fees under 28 U.S.C. § 1927 and/or Federal
Rule of Civil Procedure 11.
Alexander v. City of New Orleans, No. CIV. A. 12-1524, 2015 WL 160435, at *3-4
(E.D. La. 1/12/15). Subsequently, the United States Fifth Circuit Court of Appeals
stated the following:
Alexander is WARNED, however, that future frivolous,
repetitive, or otherwise abusive filings will result in the
imposition of progressively severe sanctions, which may
include monetary penalties and restrictions on his ability to file
pleadings and other documents in this court and in any court
subject to this court’s jurisdiction. Alexander should review any
pending appeals and actions and move to dismiss any that are
frivolous. His failure to do so will result in the imposition of
sanctions. This warning supplements and does not displace the
sanctions orders of the district court.
Alexander v. Cannon Cochran Mgmt. Servs., Inc., 638 Fed. Appx. 410, 2016 WL
1042529 (5th Cir. 2016).
We find that Mr. Alexander’s appeal is frivolous, as there is no substantial
24
legal question presented and he could not, even as a pro se filer,6 believe the
position he has taken after being informed that his defamation claims cannot be
addressed until the underlying matter is resolved. Accordingly, we award the
following, to be paid by Mr. Alexander, based on his frivolous appeal:
Attorney Glazer and Meeks: $2,000 for attorney’s fees
$1,000 for damages
Mr. Englade and Mr. Wallace: $2,000 for attorney’s fees
$1,000 for damages
LSBPIE: $2,000 for attorney’s fees
$1,000 for damages
Mr. Alexander shall also pay all costs for the parties associated with this appeal.
See Hester v. Hester, 98-0854, pp. 5-6 (La. App. 4 Cir. 5/13/98), 715 So. 2d 40, 43.
Awarding a party frivolous appeal damages is sparsely utilized because of the
chilling effect it may have on litigation. However, a chilling effect is necessary for
Mr. Alexander given his repetitious court filings and the unique background of the
present matter.
DECREE
For the above-mentioned reasons, we find that the trial court correctly
sustained the exception of prematurity, as Mr. Alexander’s claims of defamation
cannot be brought until the underlying suit is concluded.
We also find the trial court did not err by granting LSBPIE’s Special Motion
to Strike, as Mr. Alexander was properly served and La. C.C.P. art. 971 was
designed for this type of suit. Additionally, we find that LSBPIE is entitled to an
increase in Article 971 sanctions. Therefore, we remand the matter to the trial
court for determination.
We find that the trial court erred by not addressing Attorney Glazer and
6
Attorney Donald C. Douglas, Jr. appeared and was allowed to enroll for oral argument only.
25
Meeks’ Motion for Sanctions pursuant to La. C.C.P. art. 863. We remand this
issue to the trial court for a determination on the motion.
Lastly, we find that Mr. Alexander’s appeal is frivolous and award damages,
attorney’s fees, and costs consistent with this opinion. The judgment of the trial
court is affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; REMANDED
26