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Frisard v. Eastover Bank for Sav.

Citations: 572 So. 2d 343; 1990 WL 210441Docket: 90-CA-483

Court: Louisiana Court of Appeal; December 11, 1990; Louisiana; State Appellate Court

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Dan C. Frisard, III, the owner and lessor of a property in Marrero, Louisiana, appealed the dismissal of his lawsuit against Eastover Bank for Savings, which was dismissed on the grounds of no cause of action. The dispute arose after Eastover's law firm mistakenly sent an eviction notice to Frisard’s tenant, Ms. Williams, in May 1988, due to an incorrect address. Following the error, Frisard contacted the law firm, which subsequently issued letters of apology to both Frisard and his tenant. Despite this, Eastover representatives continued to contact Ms. Williams in August 1988, threatening eviction and property seizure.

Frisard’s amended petitions detail a series of events from May to August 1988, including the law firm's erroneous notice and the subsequent communications from Eastover representatives regarding the tenant's eviction. Frisard claims these actions resulted in emotional distress, anxiety, loss of goodwill with the tenant, embarrassment, defamation, and financial losses related to legal consultations and rent compensations. He asserts that these damages were caused by the negligence of Eastover Bank’s employees or representatives, whose identities are unknown to him but he believes are within the defendants' knowledge.

Employees and representatives of Eastover exhibited negligence by failing to thoroughly inspect public parish property ownership records for 1002 DiMarco, Marrero, Louisiana, prior to eviction and seizure notices. They neglected to respond appropriately to multiple good faith attempts by Ms. Williams to provide information that indicated the eviction and seizure were erroneous. Additionally, they violated Dr. Frisard's right to privacy by disseminating false information to neighbors, resulting in public embarrassment and defamation of his character. Furthermore, they disrespected Ms. Williams' right to peaceful possession of the property, which inadvertently imposed an obligation on Dr. Frisard regarding her possession. Eastover raised exceptions of res judicata and no cause of action, with the trial judge denying the former and granting the latter, leading to the dismissal of the plaintiff's suit. The appellate court focused on whether the dismissal for failure to state a cause of action was appropriate. The appellee argued that the res judicata exception should have been upheld, but this was not considered due to the lack of a cross-appeal. Claims for emotional distress and mental anguish were discussed, noting that while witnessing physical injuries to a third party can lead to such claims, emotional distress from another's distress has not been recognized as valid. Damages for mental anguish are rarely awarded in cases involving property damage unless specific criteria are met, as outlined in the Kolder case. The court highlighted that merely witnessing distress or potential harm does not substantiate claims for mental anguish without actual property damage.

The plaintiff's petition lacks allegations of actual property damage or significant emotional distress, failing to establish a cause of action for damages related to mental anguish. For defamation, the plaintiff claims he was falsely accused of not paying his mortgage, but does not meet the necessary elements for defamation, which include specific defamatory statements, publication, falsity, malice, and injury. The petition does not identify any defamatory words, does not name the plaintiff as a debtor, and alleges negligence rather than malice, leading to the judge's ruling being upheld. Regarding claims for lost rental income due to alleged tortious interference, the plaintiff's allegations do not align with the standards outlined in *9 to 5 Fashions, Inc. v. Spurney*, as tortious interference requires intentional conduct rather than negligence. Additionally, no facts support a claim for attorney's fees, as there is no contractual or statutory basis for such a claim. The court affirms the ruling denying the defendant's exception of res judicata and sustains the exception of no cause of action. The case is remanded to allow the plaintiff fifteen days to file an amended petition if possible.