MURPHY PAINTER v. STATE OF LOUISIANA THROUGH THE OFFICE OF THE GOVERNOR THE DEPARTMENT OF REVENUE AND TAXATION ALCOHOL TOBACCO CONTROL COMMISSION CYNTHIA BRIDGES IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF REVENUE AND TAXATION THE OFFICE OF STATE INSPECTOR GENERAL AND STEPHEN STREET IN HIS OFFICIAL CAPACITY AS STATE INSPECTOR GENERAL (2025)

Plaintiff appeals a judgment of the trial court granting defendants’ motion in limine, motion to strike, and peremptory exceptions raising the objections of res judicata and no cause of action and dismissing all of plaintiff's claims against the defendants. For the following reasons, we reverse in part and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In this protracted litigation, the relevant facts to this appeal are as follows. Plaintiff Murphy Painter served as the Commissioner and Assistant Secretary of the Louisiana Office of Alcohol and Tobacco Control (ATC) from February 1996 through August 2010. This litigation began in August 2011, when Painter filed a lawsuit against several defendants, including the Office of Inspector General (OIG) and Stephen Street in his capacity as the Inspector General (hereafter referred to as the OIG defendants). Throughout the litigation, numerous motions and exceptions were filed, and Painter filed multiple supplemental and amending petitions.

Painter's claims against the OIG defendants include defamation, abuse of right and abuse of process, malicious prosecution, and negligence. His claims arise primarily out of statements made in an unsealed search warrant submitted by OIG to the 19th Judicial District Court and in an investigative report prepared by OIG, which contained allegations that during his employment, Painter harassed former ATC employee Kelli Suire and improperly accessed state and federal electronic databases to obtain personal information about multiple individuals. Painter contends that the actions of OIG caused substantial damage to his name and reputation and resulted in his termination from his position.¹

On August 7, 2015, Painter filed his Fourth-Amending and Supplemental Petition for Damages naming several new parties as defendants including Shane Evans, who was the lead investigator of the Painter investigation for OIG. Evans was eventually dismissed from the matter after this court's rulings in December 2018 granting a special motion to strike and exception of no cause of action filed by Evans. After Evans was dismissed, the OIG defendants filed a peremptory exception raising the objection of no cause of action and res judicata, a motion in limine seeking to preclude any testimony or evidence regarding the purported defamation and constitutional violations committed by Evans, a special motion to strike under La. Code Civ. P. art. 971 (“special motion to strike”), and a motion to strike allegations against Evans under La. Code Civ. P. art. 964 (“motion to strike allegations”). The OIG defendants voluntarily dismissed the special motion to strike, and their remaining motions and exceptions came before the trial court for a hearing on July 25, 2002. On August 19, 2022 ² , the trial court signed a judgment granting the OIG defendants’ motion in limine, motion to strike allegations, and peremptory exceptions of res judicata and no cause of action and dismissing all of Painter's claims against OIG and Street. It is from this judgment that Painter appeals, contending in three assignments of error that the trial court erred in granting the OIG defendants’ motion to strike allegations, motion in limine, and exceptions of res judicata and no cause of action.

We considered Painter's assignments of error regarding the motion to strike allegations, motion in limine, and exception of no cause of action together as our analysis on the trial court's grant of the motion to strike allegations and motion in limine affected our de novo review of determining whether Painter stated a cause of action.

LAW

Motion to Strike

Louisiana Code of Civil Procedure article 964 provides, “The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.” Whether a motion to strike should be granted pursuant to Article 964 rests in the sound discretion of the trial court and is reviewed under the abuse of discretion standard. Cole v. Cole, 2018-0523 (La. App. 1st Cir. 9/21/18), 264 So.3d 537, 544. Motions to strike are disfavored and infrequently granted. This is because striking a portion of a pleading is a drastic remedy, and because motions to strike are often sought by the movant simply as a dilatory tactic. However, a motion to strike is proper if it can be shown that the allegations being challenged are so unrelated to a plaintiff's claims as to be unworthy of any consideration and that their presence in the pleading would be prejudicial to the moving party. A motion to strike is a means of clearing up the pleadings, not a means of eliminating causes of action or substantive allegations. Id.

Because the source of Article 964 is found in Rule 12(f) of the Federal Rules of Civil Procedure, we look to federal jurisprudence to assist us in analyzing Article 964. Cole, 264 So.3d 537 at 544. The terms immaterial, and impertinent, have been defined in at least one federal case, Marceaux v. Lafayette Consol. Government, 6:12-01532 (W.D. La. 10/18/12), 2012 WL 5197667, *1 (unpublished), wherein the court stated:

Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded. Immateriality is established by showing that the challenged allegations “can have no possible bearing upon the subject matter of the litigation.” Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question. Id.

Motion in Limine

A district court is afforded broad discretion in its consideration of evidentiary matters, including motions in limine. See Heller v. Nobel Insurance Group, 2000-0261 (La. 2/2/00), 753 So.2d 841, 841. Evidence that is not relevant is not admissible. See La. Code Evid. art. 402. Whether evidence is relevant is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Hunter v. State ex rel. LSU Medical School, 2005-0311 (La. App. 1st Cir. 3/29/06), 934 So.2d 760, 763, writ denied, 2006-0937 (La. 11/3/06), 940 So.2d 653.

No Cause of Action

The function of the 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 operative facts alleged in the pleading. B & C Elec., Inc. v. East Baton Rouge Parish School Bd., 2002-1578 (La. App. 1st Cir. 5/9/03), 849 So.2d 616, 619. In the context of the exception, a “cause of action” is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Terrebonne Parish Consolidated Government v. Duval, Funderburk, Sundbery, Richard & Watkins, APLC, 2021-0578 (La. App. 1st Cir. 2/18/22), 340 So.3d 1099, 1104, writ denied, 2022-00470 (La. 5/10/22), 337 So.3d 910. No evidence may be introduced to support or controvert the exception of no cause of action. La. Code Civ. P. art. 931. The court reviews the petition and accepts well-pleaded factual allegations as true, as well as any facts shown in annexed documents. B & C Elec., 849 So.2d at 619. Because the exception of no cause of action raises a question of law, appellate courts conduct a de novo review. Id.

An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06), 929 So.2d 1211, 1217.

ANALYSIS

The OIG defendants filed their motion to strike allegations seeking to strike “insufficient, immaterial, and impertinent allegations against Shane Evans” from Painter's petitions. The OIG defendants argued that in light of this court's ruling, all factual allegations in Painter's petition in support of or relating to the defamation and § 1983 claims asserted against Evans should be stricken because these allegations were no longer relevant to the litigation and would only confuse the relevant issues in the case. Specifically, the OIG defendants contended that all of the factual allegations in support of claims against Evans are immaterial and impertinent. The OIG defendants requested that several specific paragraphs from Painter's third and seventh amended petition be stricken in whole or in part. In the judgment on appeal, “the Motion to Strike Allegations Against Shane Evans from [Painter's] petition” was granted.

The OIG defendants also filed a motion in limine to preclude testimony and evidence regarding the defamation and constitutional violations committed by Evans in light of the rulings by the First Circuit dismissing claims against Evans with prejudice. In the judgment,³ the trial court ordered “that the Motion in Limine to Preclude Testimony and Evidence Regarding the Purported Defamation and Constitutional Violations, if any, of Shane Evans is hereby GRANTED.”

As noted, the OIG defendants filed their motion to strike allegations and motion in limine in light of the December 2018 rulings of this court on OIG's writ application that dismissed all of Painter's claims against Evans and dismissed Evans from the suit. Therefore, we thoroughly considered the effect of this court's ruling on the remaining claims against the OIG defendants. This court's rulings in pertinent part are as follows:

WRIT GRANTED IN PART WITH ORDER; DENIED IN PART.The district court's May 21, 2018, judgment denying Shane Evans’ Special Motion to Strike is hereby reversed in part. “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.” La. Code Civ. P. art. 971(A)(1). If the mover on a special motion to strike makes a prima facie showing that his comments were constitutionally protected and in connection with a public issue, the burden shifts to the plaintiff to demonstrate a probability of success on the claim. Shelton v. Pavon, 2017-0482 (La. 10/18/17), 236 So.3d 1233, 1237. Murphy J. Painter alleged two causes of action arising from statements Shane Evans made in a search warrant application and his Office of Inspector General investigative report in furtherance of his First Amendment rights and in connection with a public issue: defamation and deprivation of a Fourteenth Amendment right. Thus, the burden shifted to Murphy J. Painter to demonstrate likelihood of success on the merits of these two claims. In his opposition to Shane Evans’ Special Motion to Strike, Murphy J. Painter failed to timely submit any evidence in support of his Opposition to Shane Evans’ Special Motion to Strike. “[A]rgument of counsel and briefs, no matter how artful, are not evidence.” Regan v. Caldwell, 2016-0659 (La. App. 1st Cir. 4/7/17), 218 So.3d 121,128, writ denied, 2017-0963 (La. 4/6/18), 239 So.3d 827. Failure to produce supporting affidavits or otherwise competent evidence is insufficient to overcome a special motion to strike. Id. Therefore, Murphy J. Painter failed to demonstrate a likelihood of success on the merits as to his defamation and Fourteenth Amendment claims against Shane Evans. As such, Shane Evans’ Special Motion to Strike is hereby granted as to these claims, and they are dismissed with prejudice. Murphy J. Painter's Fourth Amendment and abuse of process claims do not arise from any act of Shane Evans in furtherance of his right of petition or free speech and therefore are not subject to a special motion to strike. Shane Evans’ Special Motion to Strike is therefore denied as to these claims.

Painter v. State Through Office of Governor, 2018-1289 (La. App. 1st Cir. 12/26/18), (unpublished writ action) 2018 WL 6807124, cert. denied, — U.S. — ,140 S. Ct. 224, 205 L.Ed.2d 126 (2019).

WRIT GRANTED. The district court's March 9, 2018, ruling denying Shane Evans’ Peremptory Exception of No Cause of Action to Murphy J. Painter's Seventh Amended Petition is hereby reversed. Murphy J. Painter failed to plead facts sufficient to state a claim for his remaining claims (following the partial grant of the Special Motion to Strike by this court in 2018 CW 1289) against Shane Evans. As such, Shane Evans’ Peremptory Exception of No Cause of Action is granted, and Murphy J. Painter's remaining claims asserting a violation of his Fourth Amendment rights and abuse of process against Shane Evans are hereby dismissed with prejudice.

Painter v. State Through Office of Governor, 2018-1265 (La. App. 1st Cir. 12/26/18), (unpublished writ action) 2018 WL 6813918.

In ruling on the special motion to strike, this court determined that Evans proved the statements he made in the search warrant application and the OIG investigative report were in furtherance of his First Amendment rights and in connection with a public issue, thereby shifting the burden to Painter to establish his probability of success on his claims for defamation and deprivation of a Fourteenth Amendment right.⁴ Painter did not produce any evidence in response to the special motion to strike and therefore failed to demonstrate a likelihood of success on the merits as to his defamation and Fourteenth Amendment claims against Evans. Furthermore, this court found Painter failed to state a cause of action against Evans for abuse of process or for violation of Painter's Fourth Amendment rights. Therefore, Painter's defamation and Fourteenth Amendment claims against Evans were stricken under La. Code Civ. P. art. 971, and his claims against Evans under the Fourth Amendment and abuse of process were dismissed for failure to state a cause of action. With these findings Evans was dismissed from the suit, and this court is without authority to find Evans at fault ⁵

In his petition, Painter contends that Evans was the primary author of the report released by OIG that included a number of false and defamatory statements and that Evans defamed Painter in the search warrant application. Painter further contends that OIG as the employer of Evans is vicariously liable to him for the actions of Evans because the statements were made within the course and scope of Evans’ employment with OIG.

As noted by the OIG defendants in their motion to strike allegations and motion in limine, several allegations in Painter's petitions against OIG were directly based on the conduct of Evans throughout OIG's investigation. Painter was given his opportunity to prove fault on the part of Evans when the burden shifted to him to demonstrate a likelihood of success on the merits as to his defamation and Fourteenth Amendment claims against Evans. Painter did not meet his burden. Therefore, there is a final finding by this court that Evans is not liable for the causes of action raised against him. For the following reasons, we agree with the OIG defendants that OIG cannot be liable to Painter for the conduct of Evans under vicarious liability or respondeat superior since Evans cannot be found at fault.

While defamation is an individual tort which, as a general rule, does not give rise to solidary liability, when the defamatory statements are made by an employee in the course and scope of his or her employment, liability is nevertheless attributable to the employer under vicarious liability principles. See Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 558-9. Vicarious liability is not a cause of action, but rather a method of holding one party liable for the conduct of another, of which respondeat superior is merely a species. Martin v. Thomas, 2021-1490 (La. 6/29/22), 346 So.3d 238, 243 n. 3. The nature of the employer's vicarious liability under respondeat superior “is secondary or derivative in the sense that the employer is not himself a wrongdoer or tortfeasor.” Sampay v. Morton Salt Co., 395 So.2d 326, 328 (La. 1981). Thus, as Professor Crawford notes: “[i]t goes without saying that if the employee was not guilty of tortious conduct in the alleged wrong, [then] there is no vicarious responsibility on the employer.” William E. Crawford, Louisiana Civil Law Treatise, Tort Law § 9.11 (2d ed.2024).

Considering the basis for vicarious liability for defamation, OIG cannot be liable to Painter for the conduct of Evans under vicarious liability or respondeat superior since there was no tortious conduct found on the part of Evans and Evans has been dismissed. Once this court dismissed Painter's claim against Evans for his communications in the warrant application and investigative report, then that meant that OIG could not be vicariously liable for the conduct of Evans. See Franklin v. Haughton Timber Co., 3 77 So.2d 400, 406 (La. App. 2d Cir. 1979), writ denied, 3 80 So.2d 624 (La. 1980).

In the motion to strike allegations, the allegations based on the behavior of Evans are no longer relevant and it was within the sound discretion of the trial court to strike as impertinent and immaterial allegations in Painter's petitions that were based on the conduct of Evans. However, the judgment did not specify what allegations were stricken pursuant to the motion to strike allegations. See LaBranche v. Landry, 2023-1358 (La. App. 1st Cir. 8/20/24), 395 So.3d 303, 310-311 (trial court could not strike petitioner's pleadings and motion under statute permitting motions to strike from a pleading without specifying the pleadings or allegations that were to be stricken pursuant to motions to strike). In the OIG defendants’ prayer for relief in its motion to strike allegations, the OIG defendants listed over eighty paragraphs from Painter's petition that it sought to have stricken in whole or in part from the pleadings. The OIG defendants’ motion included certain paragraphs that mentioned Evans by name and certain paragraphs that did not. The August 2022 judgment simply granted “the Motion to Strike Allegations Against Shane Evans from [Painter's] petition.” Herein, Painter's petitions consist a total of six-hundred and thirty-nine paragraphs, making it impossible to determine based on the language of the judgment what allegations were stricken from the record.

Our de novo review of an exception of no cause of action requires this court to accept all well-pleaded factual allegations as true and affirm the grant of a no cause of action only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Considering this standard, we attempted to review Painter's multiple petitions to determine whether he stated a cause of action for defamation, abuse of right and abuse of process, malicious prosecution, and negligence. Without knowing what specific allegations were stricken from Painter's multiple pleadings, we are unable to properly review whether Painter stated a cause of action.⁶ Therefore, we reverse the trial court's grant of the exception of no cause of action and remand the matter to the trial court to specify what allegations are stricken from Painter's pleadings.

Furthermore, as for the motion in limine, without knowing the ultimate scope of the pleadings, it is premature to make findings as to what evidence is relevant and admissible. See La. Code Evid. art. 402. Therefore, we reverse the trial court's grant of the motion in limine and remand the motion to the trial court to consider in light of the paragraphs stricken from the pleadings.

RES JUDICATA

The OIG defendants contend that Painter's defamation claims against OIG that arise out of Evans’ statements in the search warrant and investigative report are barred by res judicata because the defamation claims are based on the doctrine of respondeat superior for the conduct of Evans. The trial court granted the OIG defendants’ exception of res judicata. Louisiana Revised Statutes 13:4231, which sets forth the general principles regarding res judicata, provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.

(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Louisiana Supreme Court has emphasized that all of the following elements must be satisfied in order for res judicata to preclude a second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause(s) of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause(s) of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385 (La. 2/25/03), 843 So.2d 1049, 1053. The burden of proving the facts essential to support the objection of res judicata is on the party pleading the objection. If any doubt exists as to the application of res judicata, the objection must be overruled and the second lawsuit maintained. Landry v. Town of Livingston Police Department, 2010-0673 (La. App. 1st Cir. 12/22/10), 54 So. 3d 772, 776.

While as discussed above, we agree that OIG cannot be held liable for the conduct of Evans, res judicata does not apply in this matter. First, there is no second suit, rather a party was dismissed. Second, the identity of the parties is not the same. The OIG defendants acknowledged in brief that the defamation claims arise “primarily” out of Evans’ alleged defamatory statement, and “to the extent” Painter's defamation claims against OIG are based on respondeat superior for Evans’ conduct the identity of the parties is the same. However, Painter does not rely on vicarious liability for Evans alone in its petition. Painter's petitions contain allegations of acts independent of Evans committed by OIG and Street. Further, the OIG defendants’ arguments regarding res judicata are limited to Painter's defamation claims, and Painter raised other causes of action against the OIG defendants. Accordingly, the trial court erred in granting the exception of res judicata.

CONCLUSION

For the foregoing reasons, we reverse the trial court's grant of the peremptory exceptions raising the objections of res judicata and no cause of action and the trial court's grant of the motion in limine. We remand the matter to the trial court to specify what paragraphs in Mr. Painter's petitions are stricken from the pleadings and consider OIG's exception of no cause of action and motion in limine in light of the paragraphs stricken from the pleadings. The costs of the appeal are to be divided equally between Murphy Painter and the Louisiana Office of the State Inspector General.

REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

I concur with the majority's decision to remand to the trial court to specify what paragraphs in Painter's petitions are stricken from the pleadings and then to consider OIG's exception of no cause of action in light of the remaining paragraphs. I disagree with the majority's finding that it was within the sound discretion of the trial court to strike all allegations in Painter's petition that were based on the conduct of Evans. While the majority concludes OIG cannot be liable to Painter for the conduct of Evans under the theories of vicarious liability or respondeat superior, I think the consequences of an employee's dismissal from a lawsuit pursuant to a special motion to strike depends on the nature of the dismissal. If the dismissal is granted without a determination on the merits as to the employee's conduct, then I believe the employer may still be held liable under respondeat superior. See Igbokwe v. Moser, 2012-1366 (La. App. 4th Cir. 4/24/13), 116 So. 3d 727. Thus, while the pleadings likely contain surplusage considering that Evans is no longer a defendant and can no longer be found liable, factual allegations related to alleged defamation should not be excised.

FOOTNOTES

1.   On April 10, 2019, Painter filed his “Eighth-Amending Supplemental Petition for Damages” incorporating paragraphs 1 through 260 of his third amending and restated petition and paragraphs 261-543 of his seventh amending supplemental and restated petition. Painter's eighth amended petition is his most recent petition and the petition we considered when reviewing the judgment before this court.

2.   A second identical judgment was signed by the trial court on August 25, 2022.

3.   The trial court's grant of OIG's motion in limine is interlocutory in nature and generally not appealable. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings, in addition to review of the final judgment. Cajun Constructors, Inc. v. EcoProduct Solutions, LP, 2015-0049 (La. App. 1st Cir. 9/18/15), 182 So.3d 149, 155, writ denied, 2015-1908 (La. 11/20/15), 180 So.3d 1287.

4.   Under Article 971, a cause of action against a person arising from any act in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitutions 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. La. Code Civ. P. art. 971(A)(1). Accordingly, Article 971 provides a burden-shifting mechanism, whereby the mover must establish that the cause of action against him arises from an act by him in the exercise of his right of petition or free speech under the United States or Louisiana Constitutions in connection with a public issue. If the mover meets this initial burden, the burden then shifts to the plaintiff to demonstrate a probability of success on the claim. Thinkstream, Inc. v. Rubin, 2006-1595 (La. App. 1st Cir. 09/26/07), 971 So.2d 1092, 1100, writ denied, 2007-2113 (La. 1/7/08), 973 So.2d 730.

5.   This is distinguishable from a tort case where an employee is dismissed from a suit on purely procedural grounds and the employer remains in the case. See Igbokwe v. Moser, 2012-1366 (La. App. 4th Cir. 4/24/13), 116 So.3d 727, 730 (In Igbokwe, an employee of Southbrook was involved in a car accident allegedly in the course and scope and his employment with Southbrook. The employee was dismissed from the action because he was not properly served. Thereafter, Southbrook and its insurer filed a motion for summary judgment and/or exception of res judicata asserting that because the employee had been dismissed with prejudice there was no factual or legal basis to hold Southbrook or its insurer liable under the doctrine of respondeat superior. The appellate court determined that res judicata did not apply because the dismissal of the employee on procedural grounds where no determination was made as to the employee's negligence, does not bar the plaintiffs from continuing to pursue Southbrook and its insurer. Igbokwe, 116 So.3d at 730.) Herein, Evans was not dismissed on purely procedural grounds such as lack of service. Unlike in Igbokwe, where the negligence of the employee was never before the court, Painter was given the opportunity to prove negligence on the part of Evans under the burden shifting mechanism of Article 971. In failing to introduce any evidence, he did not meet his burden of proof.

6.   Specifically, we note, the very allegations that Painter relies on to contend that he stated a cause of action for defamation include allegations that the OIG defendants requested be stricken from the record in its motion to strike allegations. In his brief, Painter contended that paragraphs 147-151 when viewed in the light most favorable to him plead a viable claim of actual malice. In its motion to strike allegations, the OIG defendants requested that paragraphs 148, 150, and 151 be stricken from the record.

HESTER, J.

McClendon, J. concurs in the result reached by the majority. Miller, J. concurs in the result and assigns reasons.