Tickle v. Ballay

259 So. 3d 435
CourtLouisiana Court of Appeal
DecidedNovember 14, 2018
DocketNO. 2018-CA-0408
StatusPublished
Cited by8 cases

This text of 259 So. 3d 435 (Tickle v. Ballay) 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
Tickle v. Ballay, 259 So. 3d 435 (La. Ct. App. 2018).

Opinion

Judge Daniel L. Dysart

This is an appeal of a trial court judgment granting a peremptory exception of no cause of action filed by defendant-appellee, District Attorney Charles J. Ballay, in his official capacity as District Attorney, 25th Judicial District, State of Louisiana (hereafter, "DA Ballay"). After having conducted a de novo review of this matter, we find that the exception was properly granted. Accordingly, we affirm the trial court's judgment.

FACTS AND PROCEDURAL BACKGROUND

In this suit seeking damages for malicious prosecution, plaintiff-appellant, Benjamin Tickle, alleges that, on September 1, 2012, he, his wife and a friend had gone to the Belle Chasse ferry landing with the intention of "checking up on the post-hurricane condition of [his] property." There, they encountered several police officers. At the time, Mr. Tickle "was carrying a holstered .45 caliber Glock semi-automatic pistol clearly visible on his right hip" and one of the officers "approached him from behind and seized his weapon," refusing to return the weapon unless it was disassembled.1 Ultimately, Mrs. Tickle's vehicle was searched, two additional guns were found in the glove compartment and marijuana was found under the floor mat. Marijuana was also discovered in a search of Mrs. Tickle's purse. Mr. Tickle, his wife and his friend were then arrested.2

Mr. Tickle was charged by bill of information dated January 3, 2013 with possession of a schedule I substance under La. R.S. 40:966, and "possession of a CDS ( La. R.S. 14:95(E)."3 An amended bill of information *437filed on January 8, 2014 charged Mr. Tickle with "Statewide Permits for Concealed Handguns ( La. R.S. 40:1379.3 (I)&(L) )."4 Mr. Tickle, maintaining that there had been an unlawful search in connection with his arrest, filed a Motion to Suppress the evidence, which was denied by the trial court.5

Mr. Tickle was tried and acquitted of all charges and "[t]he matter ... finally disposed of in January, 2015." Mr. Tickle filed a federal lawsuit for malicious prosecution against DA Ballay in December of 2015. The federal court dismissed all claims; the state law claims were dismissed without prejudice. Mr. Tickle then filed the instant lawsuit, naming DA Ballay and several officers.6

In response to the Petition for Damages ("Petition"), DA Ballay filed Peremptory Exceptions of No Cause of Action and Prescription. After a hearing, the trial court granted the exception of no cause of action, by judgment dated December 28, 2017, dismissing, with prejudice, all claims against DA Ballay, but denied the exception of prescription.

Mr. Tickle timely appealed the trial court judgment. DA Ballay answered the appeal, requesting that, in the event that the grant of the exception of no cause of action is reversed by the Court, that the exception of prescription, denied by the trial court, be considered. As we find that the exception of no cause of action was properly granted, we do not address the exception of prescription.

STANDARD OF REVIEW; PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

A peremptory exception of no cause of action under La. C.C.P. art. 927 A(5) questions whether the law extends a remedy against a defendant to anyone under the factual allegations of a petition. Mid-S. Plumbing, LLC v. Dev. Consortium-Shelly Arms, LLC , 12-1731, p. 4 (La. App. 4 Cir. 10/23/13), 126 So.3d 732, 736. That is, "[a]n exception of no cause of action tests 'the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading.' " Green v. Garcia-Victor , 17-0695, p. 4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453, quoting Moreno v. Entergy Corp ., 10-2281, p. 3 (La. 2/18/11), 62 So.3d 704, 706. In Green , we reiterated our well-settled jurisprudence

"In deciding an exception of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition." 2400 Canal, LLC [v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll.] , 12-0220, p. 7 [ (La.App. 4 Cir. 11/7/12) ], 105 So.3d [819,] 825.... "The grant of the exception of no cause of action is proper when, assuming all well pleaded factual allegations of the petition and any annexed documents are true, the plaintiff is not entitled to the relief he seeks as a matter of law." Id.
*438Further, "any doubt must be resolved in the plaintiffs' favor." Id.

Id. , pp. 4-5, 248 So.3d at 453.

"Because exceptions of no cause of action present legal questions, they are reviewed using the de novo standard of review." New Jax Condominiums Ass'n, Inc. v. Vanderbilt New Orleans, LLC , 16-0643, p. 11 (La. App. 4 Cir. 4/26/17), 219 So.3d 471, 479, writ denied sub nom. Hew Jax Condominiums Ass'n, Inc. v. Vanderbilt New Orleans, LLC , 17-0887 (La. 9/29/17), 227 So.3d 287.

We have conducted a de novo review of the Petition and find that it fails to state a cognizable cause of action against DA Ballay. Because we affirm the grant of the exception of no cause of action, we need not address the issue of whether the trial court's denial of the peremptory exception of prescription was in error, as raised by DA Ballay, as an alternative argument, in his answer to the appeal.

DISCUSSION

As Mr. Tickle readily acknowledges, Louisiana law provides immunity to prosecutors for lawsuits alleging malicious prosecution. He contends, however, that the immunity protects prosecutors, individually, but does not protect against those claims asserted against them in their official capacity. We disagree.

The doctrine of absolute prosecutorial immunity evolved from the United States Supreme Court in the decision of Imbler v. Pachtman , 424 U.S. 409, 96 S.Ct. 984

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Bluebook (online)
259 So. 3d 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tickle-v-ballay-lactapp-2018.