Barletta v. State ex rel. Louisiana State University Medical Center, School of Dentistry

533 So. 2d 1037, 1988 La. App. LEXIS 2195, 1988 WL 113197
CourtLouisiana Court of Appeal
DecidedOctober 27, 1988
DocketNo. 88-CA-0559
StatusPublished

This text of 533 So. 2d 1037 (Barletta v. State ex rel. Louisiana State University Medical Center, School of Dentistry) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barletta v. State ex rel. Louisiana State University Medical Center, School of Dentistry, 533 So. 2d 1037, 1988 La. App. LEXIS 2195, 1988 WL 113197 (La. Ct. App. 1988).

Opinion

BYRNES, Judge.

This case involves the denial of injunctive relief. Plaintiff/Appellant, Joseph W. Bar-letta (Barletta) filed a petition for preliminary injunction against the State of Louisiana, Through the Louisiana State University Medical Center, School of Dentistry (Dental School) seeking to have his expulsion from dental school lifted pending trial on the merits. The trial court ordered a hearing by affidavit pursuant to La-C.C.P. Art. 3609 and on January 21, 1988, the trial court denied the preliminary injunction. The Court assigned reasons for judgment on January 28, 1988, stating that: “The applicant failed to make a prima facie showing that he would prevail on the merits, therefore the preliminary injunction was denied.” We agree.

FACTS

Barletta was a licensed dental hygenist and a dental student attending the Louisiana State University School of Dentistry. On January 29, 1979, the Louisiana State Board of Dentistry (Board) commenced pro[1039]*1039ceedings against Barletta for alleged violations of LA-R.S. 37:777(9), which provides:

The board may refuse to issue, or may suspend or revoke any dental hygienist license or permit, or impose probationary or other restrictions on any license or permit issued under this Chapter for any of the following reasons.
(9) Performance of any operation or procedure other than that permitted under the provisions of this Chapter.

These charges were based upon three alleged incidents that occurred in 1985 while Barletta was working in his father’s dental office as a part-time dental hygienist. Specifically, Barletta administered an injection and/or performed a tooth extraction on a patient without the requisite authority and supervision. He also apparently wrote a prescription for the drug perco-dan and saw a patient without the supervision of a dentist.

The Board scheduled a hearing on these charges for March 21, 1987 at which time the Board and Barletta, who was represented by counsel, filed a consent decree which had been executed by the parties several days prior to the hearing date. By this consent decree, Barletta agreed to waive all rights he may have had, including, among others, his right to a full administrative hearing, to present and cross-examine witnesses, and to appeal the decision. He agreed further to surrender his license to practice dental hygiene for five (5) years followed by a ten (10) year probation period. Finally, Barletta was fined $3,000.00 and ordered to reimburse the Board the amount of $1,593.00 for costs. (The consent decree is reproduced in its entirety in appendix “A” to this opinion.)

On August 24, 1987 Barletta received oral notification from Dr. Howard Brug-gers, chairman of the Student Affairs Committee at the dental school, informing him that a hearing before the Student Affairs Committee was scheduled for September 3, 1987 to consider whether the actions which had led to the consent decree constituted violations of the Professional Conduct Code of the dental school. Specifically, Section II of the Code prohibits behavior that is “contrary to the best interests of ... the School of Dentistry”. Dr. Bruggers also advised Barletta of his due process rights. The conversation between Bruggers and Barletta was confirmed by a letter from Bruggers dated August 24, 1987.

In response to this notification, Barletta contacted Wilson C. Krebs, the attorney who had represented him before the Board in connection with the consent decree. By correspondence dated August 31, 1987, Mr. Krebs apparently requested a continuance of the hearing due to his unavailability on the scheduled date. Upon receipt of Mr. Krebs’ letter on September 2, 1987, Paul W. Newton, Jr., an attorney for the Board of Supervisors of Louisiana State University, contacted Mr. Krebs concerning the hearing. An affidavit executed by Mr. Newton reflects that during that conversation the attorneys agreed to a continuance for the purpose of allowing Mr. Krebs to confer with Barletta about the possibility of retaining other counsel for the hearing. The hearing was to be continued for one week, until September 10, 1988. Mr. Krebs, however, would still be unavailable on that date. Barletta did find out about the new September 10 hearing date and appeared before the committee unrepresented by counsel. The affidavits reflect that Barletta participated fully in the hearing. No witnesses were presented against him, and he was given the opportunity to present witnesses on his own behalf, which he chose not to do. Following the hearing, the committee ruled that Barletta had violated the Code and recommended his expulsion from the dental school. The Dean accepted the committee’s recommendation, and Barletta was expelled.

Barletta unsuccessfully exhausted his internal appeal remedies, and he filed a petition for preliminary injuction seeking to be reinstated to the dental school curriculum. The trial court ordered a trial by affidavit, and on January 21, 1988 the court denied the injunction, finding that Barletta had “failed to make a prima facie showing that he would prevail on the merits” (Reasons for Judgment, January 28, 1988). This appeal followed.

Appellant makes one assignment of error alleging that the trial court erred in deny[1040]*1040ing the preliminary injunction for failing to make a prima facie showing of prevailing on the merits. Specifically, appellant cites five issues for this court to consider. First, appellant contends that he was not accorded due process. Secondly, he states that he was not notified in writing of the hearing before the Student Affairs Committee. Third and fourth, Barletta asserts that he did not voluntarily waive his right to counsel and against self-incrimination. Finally, appellant alleges that the original charges against him were vague and ambiguous. For the following reasons, we find that appellant’s contentions are without merit.

DISCUSSION

In the instant case, the trial court chose to hear the application for injunction by affidavit as provided by LA-C.C.P. Art. 3609. Accordingly, the hearing before the court was limited to the oral argument of counsel and the court’s review of the affidavits and other exhibits submitted by the parties. It is well settled that to prevail on an application for preliminary injunction the plaintiff must meet a two-fold test. First, he must make a prima facie showing that he will prevail on the merits, and second, he must show that he will suffer irreparable injury if the status quo is not preserved and the court does not issue the injunction. LSA-C.C.P. Art. 3601 et seq; Exquisito Food Services, Inc. v. New Orleans Council of Aging, Inc., 502 So.2d 1147 (La.App. 4th Cir.1987); Price v. State Department of Public Safety, License Control and Driver Improvement Division, 325 So.2d 759 (La.App. 1st Cir.1976). This does not mean that the plaintiff must prove the merits of the case or that the court actually rules on the merits. Continental Titles, Inc. v. U.S. Fire Ins. Co., 413 So.2d 216 (La.App. 4th Cir.1982). Therefore, the granting or denial of an application for preliminary injunction cannot be construed as being equivalent to an eventual ruling on the merits of an ordinary proceeding. Rather, the court rules simply on the likelihood of success and the potential for irreparable injury to the plaintiff if the relief sought is denied, based solely on the evidence before it.

The preceding recitation of facts is based upon the affidavits and exhibits that were presented at the hearing on the application.

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Related

Continental Titles, Inc. v. United States Fire Insurance Co.
413 So. 2d 216 (Louisiana Court of Appeal, 1982)
Exquisito Food Services, Inc. v. New Orleans Council of Aging, Inc.
502 So. 2d 1147 (Louisiana Court of Appeal, 1987)

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Bluebook (online)
533 So. 2d 1037, 1988 La. App. LEXIS 2195, 1988 WL 113197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barletta-v-state-ex-rel-louisiana-state-university-medical-center-school-lactapp-1988.