Frigon v. Universal Pictures, Inc.

Citation: 255 So. 3d 591Docket: NUMBER 2017 CA 0993

Court: Louisiana Court of Appeal; June 21, 2018; Louisiana; State Appellate Court

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A succession representative has appealed the dismissal of claims related to the sale of the decedent Barry Seal's life story. The court made several key rulings: it upheld the peremptory exceptions raising the objection of no cause of action, reversed the denial of special motions to strike, and granted those motions to strike. 

Barry Seal died intestate on February 19, 1986. In 2014, Universal City Studios acquired the rights to his life story from his surviving spouse and children from his third marriage, who also conveyed their life story rights and agreed to consult on a film based on Seal's life. Following this, Lisa Seal Frigon, the decedent's daughter from his first marriage, was appointed administratrix and filed a petition against Universal and the Seal defendants to nullify the agreement, claiming violations of privacy rights and seeking damages.

In response, Universal and the Seal defendants filed peremptory exceptions and special motions to strike, seeking dismissal of Frigon's claims. After a joint hearing, the trial court dismissed Frigon's claims against Universal with prejudice but denied Universal's special motion to strike. The court did not address the motions filed by the Seal defendants. 

Frigon subsequently filed a motion for partial new trial to reconsider the dismissal and contest the trial court's refusal to allow an amendment to her petition, along with a request for costs and attorney fees. An unsigned handwritten annotation indicated that an order to vacate had been signed, though no such order was present in the record. The judgment from June 15, 2016, has been vacated, and the court plans to review the relevant law further.

On August 30, 2016, the trial court issued a judgment denying special motions to strike from Universal and the Seal defendants while granting their peremptory exceptions based on an objection of no cause of action, though it lacked detailed decretal language regarding the exception. Ms. Frigon subsequently filed a motion for a new trial, expanding on previous grounds to include the Seal defendants, which led to a hearing on December 5, 2016. The trial court then issued two judgments: the first on February 14, 2017, denied the motion for a partial new trial and dismissed the plaintiff's petition against all defendants with prejudice. It also recognized Universal City Studios, LLC as the prevailing party for the special motion to strike, thereby granting them attorney fees and costs per Louisiana Code of Civil Procedure Article 971. The second judgment on February 15, 2017, merely denied the partial new trial motion but referenced the earlier judgment. Ms. Frigon appealed both judgments, while Universal and the Seal defendants sought modifications to the August 30 judgment to grant their motions to strike and requested attorney fees related to their successful motions. Ms. Frigon argued that the trial court erred in sustaining the objections of no cause of action and in not allowing her to amend her petition, asserting that the peremptory exception's purpose is to assess whether the law provides relief based on the petition's factual claims.

All facts pleaded in a petition are accepted as true, as established in CLB61, Inc. v. Home Oil Company. No evidence can be introduced to support or refute a no cause of action exception per La. C.C.P. art. 931, although unobjected evidence may influence the determination of whether a legal remedy exists. The language of the petition must be interpreted favorably to maintain its sufficiency, allowing the plaintiff to present evidence at trial. An exception of no cause of action should generally not be partially maintained to avoid multiple appeals and piecemeal consideration of merits. If multiple damages or recovery theories arise from a single incident, dismissing one based on a no cause of action exception is inappropriate.

In evaluating a no cause of action exception, appellate courts apply a de novo review, as it concerns a legal question based solely on the petition's sufficiency. Such an exception should only be sustained if it is clear that no set of facts could support a claim for relief. In this case, Ms. Frigon claims nullity, violation of privacy and publicity rights, unfair trade practices, misappropriation, false advertising, and conversion, focusing mainly on the right of publicity. Most claims hinge on the existence of this right and its transfer to the decedent's succession.

Ms. Frigon represents the decedent's succession and possesses all related property, enforcing obligations per La. C.C.P. art. 3211. According to La. C.C.P. art. 685, a court-appointed succession representative is the proper plaintiff for enforcing deceased rights while under administration. This aligns with jurisprudence recognizing an administrator's authority to prosecute personal actions alone. Therefore, if the right of publicity is recognized under Louisiana law and survives the decedent, Ms. Frigon has the authority to assert this claim on behalf of the estate.

The right of publicity, as asserted by Ms. Frigon, pertains to her ability to control the commercial use of her deceased father's identity. Historically viewed as extrapatrimonial, rights related to personal attributes like name, image, and reputation are increasingly recognized as having commercial value. Universal and the Seal defendants entered a multi-part agreement transferring rights to their life stories, including those of the decedent, with a stipulation for a 'chain-of-title' for these rights. The agreement encompassed events from the decedent's birth onward and included potential future occurrences relevant to a film produced by Universal. Ms. Frigon disputes the transfer of her father's life story rights, claiming a violation of the right of publicity.

The U.S. Supreme Court in Zacchini v. Scripps-Howard Broadcasting Company established that the right of publicity is governed by state law and that the First Amendment does not provide a defense for infringing upon this right. Although Prudhomme v. Procter & Gamble Co. acknowledged the possibility of a right of publicity in Louisiana, it has not been fully recognized in practice, as judicial decisions in Louisiana are subordinate to legislative statutes. Consequently, the court refused to create a cause of action for the right of publicity in the absence of legislative backing, affirming the trial court's dismissal of Ms. Frigon's claim.

Additionally, Louisiana recognizes a right to privacy that encompasses four interests: (1) the appropriation of an individual's name or likeness for the defendant's benefit; (2) unreasonable intrusion upon the plaintiff's solitude; (3) publicity that places the plaintiff in a false light; and (4) unreasonable public disclosure of embarrassing private facts.

The Louisiana Fourth Circuit case, Tatum v. New Orleans Aviation Board, establishes that the right of privacy is a personal right that belongs solely to the decedent and does not extend to their estate. In Tatum, the decedent's son sought compensation for the unauthorized use of his mother’s image, but the court concluded that the right is strictly personal and dies with the individual. Louisiana law recognizes privacy rights as protections against unreasonable intrusions into personal affairs, and these claims are not heritable. The trial court's decision to sustain the objection of no cause of action regarding the right to privacy claim was deemed correct, aligning with precedent that personal obligations cannot be transmitted to an estate. Additionally, the excerpt addresses the legal standard for special motions to strike under La. C.C.P. art. 971, which allows a defendant to challenge claims arising from actions in furtherance of free speech or petition rights related to public issues, unless the plaintiff demonstrates a likelihood of success on the claim. The appellate court reviews these legal issues without deference to the trial court’s findings, focusing solely on the legal correctness of the trial court's decisions.

Definitions within the Article clarify that "Act in furtherance of a person's right of petition or free speech" includes various conduct related to constitutional rights concerning public issues. Louisiana Code of Civil Procedure article 971, enacted in 1999, was created to address the rise in lawsuits aimed at discouraging legitimate exercise of free speech and petition rights. The legislature emphasizes the importance of protecting public participation and intends for the Article to be interpreted broadly.

Article 971 serves as a procedural mechanism to dismiss frivolous claims that infringe upon these constitutional rights early in litigation. Under this Article, the burden of proof initially lies with the defendant (mover) to show that the claim arises from their exercise of free speech or petition rights. If the mover meets this burden, it then shifts to the plaintiff to prove a likelihood of success on the claim.

In the case of Universal, they contended that the lawsuit posed a significant chilling effect on free speech regarding the production of a film based on the decedent's life. Although no definitive ruling was made on Universal's argument, it was acknowledged that the lawsuit stemmed from an act of free speech. The First Amendment's protection extends to filmmaking, and similar protections apply to the Seal defendants involved in the film's production.

Furthermore, the discussion touches on whether Universal's and the Seal defendants' actions relate to a public issue, considering the events in question occurred over 30 years ago. This is paralleled to the Roshto v. Hebert case, where the court recognized the right to publish true and public information but cautioned against potential abuses based on intent, timing, and method of publication.

The court examined the issue of public interest in the case involving Roshto, concluding that information published in former newspaper editions was legitimately of public interest. Notably, the court asserted that the passage of time does not automatically transform a public matter into a private one. Universal's submission of articles from 1986 to 2000 demonstrated that the decedent's life remained a topic of public interest, particularly related to drug trafficking and federal actions, which are considered matters of broad public concern. Legal precedents support that reports on crime, prosecutions, and judicial proceedings are newsworthy and within the press's responsibility to report.

As Universal and the Seal defendants demonstrated that Ms. Frigon's lawsuit targeted their free speech on a public concern, the burden shifted to her to prove her claims' likelihood of success. If any claim could show a probability of success, the special motion to strike would fail. The court determined that Ms. Frigon did not establish any probability of success on her claims, leading to the conclusion that the trial court erred in denying the special motions to strike. Consequently, the court reversed the trial court's ruling, granted the special motions to strike, and ruled that Universal was the prevailing party entitled to reasonable attorney fees and court costs. The Seal defendants were also recognized as prevailing parties for their motion, and the judgment was amended to reflect these awards.

The court affirms in part and reverses in part the August 30, 2016 judgment regarding the plaintiff's petition. The judgment sustaining Universal and the Seal defendants' peremptory exceptions for no cause of action is upheld. However, the court grants the defendants' appeals to reverse the trial court's denial of their special motions to strike, thereby granting those motions. The February 14, 2017 judgment is amended to recognize the Seal defendants as prevailing parties entitled to reasonable attorney fees and costs. All costs associated with the appeal are assigned to the appellant, Lisa Seal Frigon, as administratrix of the estate of Adler Berriman Seal.

Judge Pettigrew concurs with the results but notes that the majority did not address issues related to La. R.S. 14:102.21, which prohibits the use of a deceased soldier's name or likeness for advertising without consent. The dissent raises questions about whether this statute creates a privacy or publicity right inheritable by the soldier's heirs and whether the succession representative can amend the petition to assert a cause of action. The dissent references the Tatum case, asserting the right of privacy of a deceased individual typically dies with them, but suggests legislative intent may alter this. The dissent finds a lack of jurisprudence analyzing La. R.S. 14:102.21 and concludes it likely does not apply to the current case.

The statute in question is deemed to apply solely to a soldier's military history, not to the life of an alleged criminal and drug smuggler who was killed outside military duty while engaging in criminal activities. The author agrees with the majority's conclusion that the case does not fall under La. R.S. 14:102.21. A film titled 'American Made' released by Universal in 2017 depicted the life of the decedent, a Louisiana native. Ms. Frigon's initial provisional appointment was later made permanent. The record shows Universal was misidentified as 'Universal Pictures, Inc.' The trial court's August 30, 2016 judgment was issued without a hearing, which is permissible under La. C.C.P. art. 1971. The trial court timely granted a new trial before the judgment could become final, as the notice of the June 15, 2016 judgment was mailed on June 17, 2016, and Ms. Frigon's motion for a partial new trial was filed on June 27, 2016. It was noted that a contradictory hearing for a new trial is not required when initiated by the court itself. A judgment dated February 15, 2016 contained an incorrect year, as it referred to a hearing held on December 5, 2016. Universal had already been awarded reasonable attorneys' fees and costs in a judgment from April 17, 2017, which is under a separate appeal. Universal sought to appeal the June 13, 2016 and February 14, 2017 judgments, while Ms. Frigon filed answers to these appeals, despite no mention of an appeal from the Seal defendants. Appeals by Universal and the Seal defendants were dismissed by the court. Ms. Frigon's allegations claim that the decedent's personal rights are assets of the Estate, asserting that the Seal defendants lacked authority to sell these rights without court approval.

Ms. Frigon alleges that Universal engaged in unfair trade practices by failing to disclose its agreement with the Seal defendants and denying any protectable interest in the decedent's life story rights. She claims that Universal's assertion that the information used was public domain and protected by free speech constitutes unfair practices. Additionally, Ms. Frigon accuses the Seal defendants of misappropriating the decedent's Life Story Rights and likeness for financial gain in marketing a feature film about the decedent, arguing that Universal's promotion of the film amounts to misappropriation of the decedent's identity. These allegations overlap with her privacy claims. 

She also contends that Universal falsely advertised ownership of the decedent's life story rights and marketed the film as an accurate account of the decedent's life without consent from the estate. Furthermore, Ms. Frigon asserts that the Seal defendants converted proceeds from the sale of the decedent's life story rights, which she claims belonged to the estate, for their personal benefit. Proposed legislation in Louisiana aims to establish a right of publicity, referred to as the 'Allen Toussaint Legacy Act,' which would recognize a property right of identity. The Seal defendants, in their legal arguments, acknowledged their reliance on Universal's thorough recitation of the law and facts without adding significant material. Examples of similar cases are cited, including portrayals of public figures in various films.