Barry Giglio, Et Ux. v. State of La., Department of Children & Family Services

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-551

BARRY GIGLIO AND MARLA GIGLIO

VERSUS

STATE OF LOUISIANA, DEPARTMENT CHILD AND
FAMILY SERVICES, ET AL.

**********
APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, DOCKET NO. 12-C-2445-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy Howard Ezell,
Judges.

AFFIRMED.

Chris Villemarette
3404 Moss Street
Lafayette, LA 70507
(337) 232-3100
ATTORNEY FOR PLAINTIFFS/APPELLANTS
Barry Giglio and Marla Giglio

Frank X. Neuner, Jr.
Jennie P. Pellegrin
NeunerPate
One Petroleum Center, Suite 200
1001 West Pinhook Road
P.O. Drawer 52828
Lafayette, LA 70505-2828
(337) 237-7000
ATTORNEY FOR DEFENDANT/APPELLEE
State of Louisiana, through the Department of Children and Family Services

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Marla and Barry Giglio, filed a lawsuit on May 17, 2012 naming

five Defendants: (1) Mindy Venable; (2) Dwayne Venable; (3) the State of

Louisiana, through the Department of Children and Family Services (hereafter

DCFS); (4) the State of Louisiana, through the Department of Public Safety,

Division of State Police; and (5) Pam McGee. The lawsuit arose from an

investigation concerning accusations of sexual molestation made by three minor

children against the Plaintiffs. These acts were alleged to have taken place on

October 1, 2010.

The children reported the alleged crime to their foster parents, Mindy and

Dwayne Venable, who then called DCFS concerning the allegations. DCFS then

reported the allegations to several law enforcement agencies. Eventually, the

allegations were presented to the Louisiana State Police. After an investigation,

the State Police submitted an affidavit containing the children’s allegations to a

district court judge in St. Landry Parish, who issued an arrest warrant for Plaintiffs.

Pursuant to that warrant, Plaintiffs were arrested and transported to jail where they

remained incarcerated for approximately two weeks until bond was posted.

Eventually the St. Landry Parish district attorney presented the charges to a

grand jury, which returned a no true bill. Plaintiffs contend despite the grand jury

refusing to indict them, the damage to them was done and “their lives were forever

changed.”

The instant lawsuit was filed by Plaintiffs alleging they were wrongfully

arrested after the culmination of a cursory investigation into the allegations made

by the three minor children. Plaintiffs alleged DCFS and the State Police

negligently investigated the claims made by the minor children against them and/or

knew or should have known the accusations were false.

2

In response to Plaintiffs’ petition, DCFS filed several exceptions: (1) an

exception of improper venue; (2) insufficiency of citation and/or service of

citation; (3) nonconformity of the petition to the requirements of La.Code Civ.P.

art. 891; (4) vagueness or ambiguity of the petition; (5) no cause of action; and (6)

prescription.

A hearing on the exceptions was held, after which the trial court granted the

exceptions of improper venue and prescription in favor of DCFS. The trial court

found the cause of action asserted by Plaintiffs did not arise from acts that occurred

in St. Landry Parish, and as a result venue was improper in St. Landry Parish. The

exception of prescription was granted because the prescriptive period for filing the

suit was not interrupted by service of suit in the proper venue. The remaining

exceptions filed by DCFS were rendered moot.

Plaintiffs have appealed the trial court’s judgment, asserting the following

assignments of error:

1. The trial court erred in granting DCFS’s exception of improper
venue when the operative facts which support Plaintiffs’ entitlement
to recovery took place in St. Landry Parish.

2. The trial court erred in granting the exception of prescription.

ANALYSIS

Initially, we emphasize the granting of the exceptions in question here applies

only to DCFS and not to any other of the named defendants. When an appeal

involves a ruling on an exception with contested issues of fact, the standard of

review is the manifest error-clearly wrong standard. Guitreau v. Kucharchuk, 99-

2570 (La. 5/16/00), 763 So.2d 575; Chesne v. Mayeaux, 03-570 (La.App. 3 Cir.

11/5/03), 865 So.2d 766. However, in a case in which there are no contested issues

of fact and the only issue is the application of the law to the undisputed facts, the

proper standard of review is whether or not there has been legal error. Hatten v.

3

Schwerman Trucking Co., 04-1005 (La.App. 3 Cir. 12/8/04), 889 So.2d 448 (citing

Cleland v. City of Lake Charles, 02-805, 01-1463 (La.App. 3 Cir. 3/5/03), 840

So.2d 686, writs denied, 03-1380, 03-1385 (La. 9/19/03), 853 So.2d 644, 645), writ

denied, 05-76 (La. 3/18/05), 896 So.2d 1009.

Louisiana Revised Statutes 13:5104 is the mandatory general venue statute

which applies in suits against a State agency (such as DCFS), unless other more

specific venue provisions apply in suits against particular agencies. Colvin v.

Louisiana Patient’s Comp. Fund Oversight Bd., 06-1104 (La.1/17/07), 947 So.2d

15. The statute reads in pertinent part:

A. All suits filed against the state of Louisiana or any state agency or
against an officer or employee of the state or state agency for conduct
arising out of the discharge of his official duties or within the course
and scope of his employment shall be instituted before the district
court of the judicial district in which the state capitol is located or in
the district court having jurisdiction in the parish in which the cause of
action arises.

La.R.S. 13:5104. Thus, under the statute an action against a state agency “shall be

instituted” in East Baton Rouge Parish or “in the parish in which the cause of

action arises.” The place where the operative facts occurred which support the

plaintiff’s entitlement to recovery is where the cause of action arises. Colvin, 947

So.2d 15.

Plaintiffs filed suit in St. Landry Parish because they believed the cause of

action against DCFS arose there. However, DCFS contended, under the facts and

theories of liability set forth in Plaintiffs’ Petition for Damages, all of the operative

facts giving rise to the claim against DCFS occurred outside of St. Landry Parish.

The trial court agreed.

The Plaintiffs argue venue as to DCFS is proper in St. Landry Parish

because: (1) false allegations of abuse purportedly were published to “the

authorities in St. Landry Parish” in order to secure arrest warrants for them; and (2)

the Plaintiffs were jailed by the St. Landry Parish Sheriff and were brought before

4

a grand jury in St. Landry Parish. However, DCFS argued, and the trial court

found, those facts are not “operative facts” regarding the Plaintiffs’ claims against

DCFS.

The record established the minor children were surrendered by their mother

to DCFS in Evangeline Parish. Carla Bollich, the DCFS Child Welfare Specialist

who was assigned to the minor children, worked in the DCFS office in Evangeline

Parish. The performance of Ms. Bollich’s duties involving the minor children

occurred outside St. Landry Parish. All of the meetings with the minor children

occurred at the DCFS office in Evangeline Parish. All meetings with the foster

parents were either at the DCFS office in Evangeline Parish or at the foster

parents’ home in Acadia Parish. All court proceedings pertaining to the minor

children’s custody and/or case plan created and managed by DCFS occurred in

Evangeline Parish. Lastly, pursuant to its mandatory reporting requirements,

DCFS reported the minor children’s allegations of sexual abuse to the Evangeline

Parish Sheriff’s Office.

The trial court dismissed Plaintiffs’ argument that venue is proper in St.

Landry Parish because false allegations of abuse were published to “the authorities

in St. Landry Parish” and Plaintiffs were jailed and brought before a grand jury in

St. Landry Parish. We find no error in the trial court’s conclusion that those facts

are not “operative facts” relating to the Plaintiffs’ claims against DCFS. The

record establishes DCFS did not “publish” false allegations against the Plaintiffs,

but simply reported the minor children’s accusations of sexual abuse to law

enforcement officials pursuant to DCFS’s statutory obligation to do so. At that

point DCFS could not control whether any dissemination of the information it

relayed to law enforcement officials would be transmitted to St. Landry Parish.

Moreover, as DCFS notes it did not arrest the Plaintiffs, bring criminal charges or

proceedings against the Plaintiffs, nor have the ability to direct law enforcement

5

agencies to pursue charges against the Plaintiffs based upon the allegations by the

minor children. Having no police power and/or prosecutorial power, DCFS

likewise had no control over the parish in which criminal charges were filed

against the Plaintiffs. Thus, we find the trial court did not err in finding St. Landry

Parish was not a parish of proper venue for the Plaintiffs’ claims against DCFS

under La.R.S. 13:5104(A).

We likewise find no error in the trial court’s grant of the exception of

prescription. Plaintiffs’ argument that the exception of prescription was in error is

based solely on the argument that venue was proper in St. Landry Parish. Having

found that venue was not proper in St. Landry Parish as to DCFS, the trial court

did not err in granting the exception of prescription.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All

costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

6