Glenn M. Hebert v. Louisiana Licensed Professional Vocational Rehabilitations Counselors Board of Examiners

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-102

GLENN M. HEBERT

VERSUS

LOUISIANA LICENSED PROFESSIONAL VOCATIONAL
REHABILITATION COUNSELORS BOARD OF EXAMINERS
AND SY ARCENEAUX

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20064643
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.

Cooks, J., dissents and assigns reasons.

AFFIRMED.

R. Scott Iles
Post Office Box 3385
Lafayette, Louisiana 70502
(337) 234-8800
COUNSEL FOR PLAINTIFF APPELLANT:
Glenn Hebert

Stephen W. Glusman
Glusman, Broyles & Glusman, LLC
Post Office Box 2711
Baton Rouge, Louisiana 70821
(225) 387-5551
COUNSEL FOR DEFENDANT/APPELLEE:
Louisiana Licensed Professional Vocational Rehabilitation Counselors
Board of Examiners

David A. Hurlburt
Hurlburt, Monrose & Ernst
A Professional Law Corporation
Post Office Drawer 4407
Lafayette, Louisiana 70502
(337) 237-0261
COUNSEL FOR DEFENDANT/APPELLEE:
Sy Arceneaux

CONERY, Judge.

This matter is once again before a panel of this court based on the appeal of

plaintiff, Glenn M. Hebert (Mr. Hebert), of the trial court’s ruling granting

summary judgment in favor of both the Louisiana Licensed Professional

Vocational Rehabilitation Counselors Board of Examiners (Board) and Mr. Sy

Arceneaux (Mr. Arceneaux) dismissing Mr. Hebert’s last remaining claim for

abuse of process. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This litigation stems from a complaint made to the Board by Mr. Arceneaux,

a vocational rehabilitation counselor (VRC) against Mr. Hebert, who is also a VRC.

Mr. Arceneaux alleged that Mr. Hebert violated La. Admin. Code tit. 46, pt.

LXXXVI, §1604(A)(6), which provides, “Licensed rehabilitation counselors will

not discuss the competency of other rehabilitation counselors or agencies

(including judgments made, methods used or quality of rehabilitation plans) in a

disparaging way with their clients.”1

Mr. Arceneaux stated in his complaint to the Board that Mr. Hebert had

written two separate letters to Mr. Arceneaux, which were also sent to his client,

Mr. Julius Jeansonne, stating that Mr. Hebert found that the rehabilitation work

performed by Mr. Arceneaux on behalf of Mr. Jeansonne was substandard and

calling Mr. Arceneaux’s services “sham rehabilitation.”2

Mr. Arceneaux, after receiving Mr. Hebert’s first letter dated February 26,

1
Louisiana Administrative Code, Title 46, Part LXXXVI, Chapter 16, contains the Code
of Professional Ethics for Licensed Rehabilitation Counselors.

2
“Sham rehabilitation” is a term that stems from the analysis in Maxie v. Brown Ind., Inc.,
95-19 (La.App. 3 Cir. 5/31/95), 657 So.2d 443, writ denied, 95-1630 (La. 10/6/95), 661 So.2d
469.

2004, sought to resolve the issue by requesting, in correspondence dated March 22,

2004, that Mr. Hebert rescind his February 26, 2004 correspondence. Mr. Hebert

refused to rescind his original correspondence and in an April 1, 2004 response to

Mr. Arceneaux, also copying Mr. Jeansonne, stated, “I will not rescind this

correspondence since I feel that all of the points in the letter are accurate.” On

May 15, 2004, Mr. Arceneaux filed an ethical complaint against Mr. Hebert with

the Board.

On June 17, 2004, the Ethics Committee of the Board informed Mr.

Arceneaux that the Board had accepted his complaint against Mr. Hebert and

would allow Mr. Hebert the opportunity to respond before reviewing the complaint

and making a determination of what, if any, additional action was required. Mr.

Hebert responded on June 23, 2004. In correspondence dated September 20, 2004,

the Ethics Committee of the Board found Mr. Hebert in “violation of Canon 4,

Rule 4.7 of the LLPVRC Code of Professional Ethics for Licensed Rehabilitation

Counselors” and informed him of his right to appeal the decision within thirty

days.3

Pursuant to the rules governing ethical complaints, by letter dated September

28, 2004, Mr. Hebert cited Maxie v. Brown Ind., Inc., 95-19 (La.App. 3 Cir.

5/31/95), 657 So.2d 443, writ denied, 95-1630 (La. 10/6/95), 661 So.2d 469, and

disputed the Ethics Committee’s interpretation of the client-counselor relationship,

asserting that Mr. Jeansonne was not Mr. Arceneaux’s client but that Mr.

Arceneaux’s true client was the LWCC.4 Mr. Hebert requested and was granted a

3
The September 20, 2004 correspondence references Rule 4.7, however that appears to
be a typographic error, as the complaint and all other decisions reflect a violation of Rule 4.6.
4
Since the ruling in Maxie, the Louisiana Legislature and the Louisiana Supreme Court
in Hargrave v. State, 12-341 (La. 10/16/12), 100 So.3d 786, have since addressed the issue of

2

hearing, which took place on January 6, 2005.

Although the hearing was held as a joint session of both the Ethics

Committee and the Board, on April 21, 2005, only the Ethics Committee rendered

a decision and recommended to the Board that it sanction Mr. Hebert for a

violation of La. Admin. Code tit. 46, pt. LXXXVI, §1604(A)(6). The April 21,

2005 Ethics Committee decision and recommendations were subject to an

additional appeals process pursuant to La. Admin. Code tit. 46, pt. LXXXVI,

Chapter 17.

Mr. Hebert timely requested an appeal of the April 21, 2005 Ethics

Committee’s decision and recommendations to the Board. Pursuant to Mr.

Hebert’s request, an appeal panel was appointed to review the record in this matter.

Subsequent to their review of the record, the appeal panel notified the Board that it

agreed with the April 21, 2005 decision and recommendations of the Ethics

Committee, which then became the final decision of the Ethics Committee.

The final decision of the Ethics Committee was then submitted to the Board

for its consideration. On March 7, 2005, the Board found that a counselor-client

relationship existed between Mr. Arceneaux and Mr. Jeansonne, and that the

conduct of Mr. Hebert was in violation of La. Admin. Code tit. 46, pt. LXXXVI,

§1604(A)(6). The Board also discussed and distinguished Mr. Hebert’s contention

that the Board was ignoring Louisiana jurisprudence which allegedly supported his

conclusion that Mr. Jeansonne was not Mr. Arceneaux’s client, relying instead on

services provided to an injured employee by a professional vocational rehabilitation counselor.
In 2003 and 2005, the legislature amended La.R.S. 23:1226. Louisiana Revised Statutes
23:1226(B)(3)(a), now provides a procedural remedy for an injured employee to swiftly seek
relief if vocational rehabilitation services are not provided by the employer or if a dispute arises
“concerning the work of the vocational counselor.” See Chapman v. Coushatta Tribe of La., 12-
1168, (La.App. 3 Cir. 3/6/13), 128 So.3d 1022, 1028-29, writ denied 13-754, (La. 5/24/13), 117
So.3d 101.

3

the workers compensation statutes and the regulations adopted by the Board

governing the client-counselor relationship.

As a result of the ethical violation, the Board issued an official reprimand to

Mr. Hebert which required him to complete, within six months of the final

administrative decision of the Board, a pre-approved course of study in ethics

related to rehabilitation counseling, or risk further sanctions.

Although the final decision of the Board was subject to review pursuant to

La.R.S. 49:950 et seq., Mr. Hebert did not appeal the final administrative decision

of the Board, but instead filed suit in the Fifteenth Judicial District Court against

the Board and Mr. Arceneaux for a writ of mandamus and damages claiming that

Mr. Arceneaux and the Board “conspired through an abuse of process to obtain

ethical action by way of an ethical complaint.” Mr. Hebert sought damages for

libel, abuse of process, and dismissal of the ethical complaint.

Mr. Arceneaux filed a motion to strike pursuant to La.Code Civ.P. art. 971.

The trial court granted his motion, dismissing Mr. Arceneaux from the litigation.

In light of Mr. Arceneaux’s dismissal, the trial court also granted the Board’s

exception of improper venue and dismissed the Board without prejudice but did

not address the other exceptions filed by the Board.

Mr. Hebert appealed the trial court’s ruling, which resulted in the first

opinion in this case by a panel of this court in Hebert v. La. Licensed Prof’l

Vocational Rehab. Counselors and Sy Arceneaux, 07-610 (La.App. 3 Cir. 1/23/08),

974 So.2d 824 (Hebert I). In Hebert I, this court reversed the trial court’s

judgment dismissing Mr. Hebert’s claims against Mr. Arceneaux and the dismissal

of the Board based on the exception of venue. Hebert I was remanded to the

district court in order “to allow Mr. Hebert to amend his pleadings to particularize

4

the claims and facts demonstrating a constutional deprivation under the color of

state law and for further proceedings consistent with this opinion.”

The Board and Mr. Arceneaux sought a writ to the supreme court, which

ultimately vacated and remanded Hebert I to this court in Hebert v. La. Licensed

Prof’l Vocational Rehab. Counselors and Sy Arceneaux, 08-412, (La. 5/9/08), 981

So.2d 21. The opinion on remand instructed that the appellate court’s discussion

of the constitutionality of the Board’s ethical code was not appropriate, as the issue

had not been raised by the parties in the district court and such an issue could not

be raised for the first time on appeal. Further, “the constitutional challenge must

be specially pleaded and the grounds for the claim particularized” in the district

court. Id. The Louisiana Supreme Court further instructed this court “to address

the applicability of La.Code Civ.Proc. art. 971 based on the showing made, i.e.,

plaintiff’s petition as presently drafted.”

In the opinion on remand, Hebert v. La. Licensed Prof’l Vocational Rehab.

Counselors and Sy Arceneaux, 07-610 (La. App. 3 Cir. 3/4/09), 4 So.3d 1002, writ

denied, 09-750, (La. 5/22/09), 9 So.3d 144 (Hebert II), a panel of this court

dismissed Mr. Hebert’s defamation claim pursuant to La.Code Civ.P. art. 971.

However, the panel allowed Mr. Hebert to maintain his abuse of process claim

based on the instructions of the Louisiana Supreme Court requiring this court to

“address the applicability of Mr. Arceneaux’s motion to strike pursuant to La.Code

Civ.Proc. art. 971.”

In Hebert II, the panel concluded that Mr. Hebert had alleged in his petition

a conspiracy between the Board and Mr. Arceneaux sufficient to state “a claim for

abuse of process, the merits of which we are not called on to address at this time.”

Hebert II, 4 So.3d at 1011. In footnote two, the panel further stated, “Mr.

5

Arceneaux filed only the motion to strike. Our decision is limited to the motion

and its applicability to abuse of process claims.” Hebert II was then remanded to

the district court for further proceedings consistent with the opinion.

Subsequent to the remand to the district court, Mr. Hebert again amended his

petition to allege a federal civil rights violation. The case was then removed to the

United States District Court for the Western District of Louisiana (USDC).

The USDC dismissed Mr. Hebert’s civil rights claim and remanded Mr.

Hebert’s remaining state law claim of abuse of process back to the Fifteenth

Judicial District Court. Both defendants, Mr. Arceneaux and the Board, then filed

motions for summary judgment seeking to dismiss Mr. Hebert’s remaining claim

for abuse of process.

On October 14, 2013, the trial court heard the motions for summary

judgment filed by Mr. Arceneaux and the Board and, for oral reasons rendered at

the close of the hearing, the trial court granted both motions and dismissed Mr.

Hebert’s sole remaining claim for abuse of process against Mr. Arceneaux and the

Board, with prejudice at his cost. On October 24, 2013, a judgment reflecting the

trial court’s ruling was signed and filed, from which Mr. Hebert now timely

appeals.

ASSIGNMENT OF ERROR

Mr. Hebert asserts the following assignment of error on appeal:

(1) THE TRIAL COURT ERRED IN PRETERMITTING THE
ISSUE OF “ULTERIOR PURPOSE” IN FINDING THAT A
COMPLIANCE WITH “PROCESS EQUALED THE
INABILITY OF THE PLAINTIFF TO PROVE AN “ABUSE
OF PROCESS” TORT CLAIM.

6

LAW AND DISCUSSION

Standard of Review

Summary judgments are reviewed de novo, applying the same standard to

the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp.,

Inc., 93-2512 (La. 7/5/94), 639 So.2d 730. Summary judgment is favored by law

and provides a vehicle by which the just, speedy, and inexpensive determination of

an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is

required to render summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions, together with the affidavits, if any, admitted for

purposes of the motion for summary judgment, show that there is no genuine issue

as to material fact, and that mover is entitled to judgment as a matter of law.”

La.Code Civ.P. art. 966(B)(2).5

In 1997, the legislature enacted La.Code Civ.P. art. 966(C)(2), which

clarified the burden of proof in summary judgment proceedings. The initial burden

of proof remains with the mover to show that no genuine issue of material fact

exists. If the mover has made a prima facie showing that the motion should be

granted, the burden shifts to the non-moving party to present evidence

demonstrating that a genuine material factual issue remains. Id. “[T]he failure of

the non-moving party to produce evidence of a material factual dispute mandates

5
Louisiana Code of Civil Procedure Article 966 was amended effective August 13, 2013.
The amendment changed the requirement that the trial court could only consider “evidence
admitted for the purposes of the motion for summary judgment,” pursuant to La.Code Civ.P. art.
966(E)(2). In the amended article, La.Code Civ.P. art. 966(F)(2) provides, “Evidence cited in
and attached to the motion for summary judgment or memorandum filed by the adverse party is
deemed admitted for the purposes of the motion for summary judgment . . . Only evidence
admitted for the purposes of the motion for summary judgment may be considered by the court
in its ruling on the motion.” Thus, the “evidence cited and attached to the motion for summary
judgment or memorandum,” filed in the record, may be considered by the trial court without the
necessity of formally entering the supporting evidence into the record at the hearing on the
motion for summary judgment.

7

the granting of the motion.” Hutchinson v. Knights of Columbus, Council No.

5747, 03-1533, p. 6 (La. 2/20/04), 866 So.2d 228, 233

When a motion for summary judgment is made and supported, the adverse

party may not rest on the allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art.

967(B). “A fact is ‘material’ when its existence or nonexistence may be essential

to [a] plaintiff’s cause of action under the applicable theory of recovery.” Smith,

639 So.2d at 751. “[F]acts are material if they potentially insure or preclude

recovery, affect a litigant’s ultimate success, or determine the outcome of the legal

dispute.” Id. (quoting S. La. Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir.

1991), writ denied, 596 So.2d 211 (La.1992)).

In determining whether a fact is material, we must consider the substantive

law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir.

12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788 So.2d 427. In

Hebert II, 4 So.3d at 1009, a previous panel of this court outlined the elements

necessary for Mr. Hebert to prevail on his claim of abuse of process:

In Simon v. Perret, 619 So.2d 155, 157 (La.App. 3 Cir.1993),
we noted “[a]buse of process is a cause of action originating from the
common law and recognized under our jurisprudence as a
compensable tort under LSA-C.C. art. 2315.” See Mini-Togs, Inc. v.
Young, 354 So.2d 1389 (La.App. 2 Cir.1978). This court in Vasseur v.
Eunice Superette, Inc., 386 So.2d 692 (La.App. 3 Cir.), writ denied,
393 So.2d 747 (La.1980), stated the essential elements of a cause of
action for abuse of process are (1) the existence of an ulterior purpose;
and (2) a wilful (sic) act in the use of the process not in the regular
prosecution of the proceeding.

In the Law of Torts, Volume I, § 4.9 at p. 330, Harper and
James, make clear that an abuse of process occurs “[w]hen the actor
employs legal process in a manner technically correct, but for a
wrongful and malicious purpose to obtain an unjustifiable end or an
object which it was not the purpose of the particular process employed

8

to effect.” “The action is not for the wrongful bringing of an action or
prosecution, but for the improper use, or rather ‘abuse’ of process in
connection therewith ... [that is], for a perversion of legal process.” Id.
The wrong lies in the use to which the process is put. If it is in fact
used to redress a legal wrong, the person who invoked the legal
process cannot be said to have committed any tort, even if his motive
was vicious or vindictive. However, when he seeks by the use of such
process to “attain some collateral objective, outside the scope of the
operation of the process employed,” a tort arises. Id. at 331.

Mr. Hebert’s Assignment of Error

Under the prevailing jurisprudence at trial, Mr. Hebert would be required to

prove two essential elements in order to maintain his claim of abuse of process

against Mr. Arceneaux and the Board. First, “the existence of an ulterior purpose,”

and second, “a willful act in the use of the process not in the regular prosecution of

the proceeding.” Hebert II, 4 So.3d at 1009.

Mr. Hebert’s primary point is that when he wrote his letter to Mr. Arceneaux,

with a copy to his client, Mr. Jeansonne, he did not consider Mr. Jeansonne to be a

true “client” of Mr. Arceneaux for rehabilitation purposes. Mr. Hebert apparently

felt that Louisiana jurisprudence had defined “sham rehabilitation” as a vocational

rehabilitation counselor failing to provide the “prompt rehabilitation services”

required by La.R.S. 23:1226(A) and (B) and discussed in Maxie, 657 So.2d 443.

Mr. Hebert obviously felt that since Mr. Arceneaux had been hired by

LWCC, he did not truly perform a full vocational rehabilitation work up with Mr.

Jeansonne’s interests in mind. Mr. Hebert likened Mr. Arceneaux’s rehabilitation

plan on behalf of Mr. Jeansonne to the “sham rehabilitation” discussed in Maxie.

Had Mr. Hebert expressed such an opinion to the workers’ compensation judge in

a judicial proceeding, his comments may well have been protected and the fact

finder could then give his expert opinion, along with Mr. Arceneaux’s, such weight

as the judge may have found appropriate. “Expert testimony on rehabilitation

9

programs is very important, and within reason should be sought and admitted.”

Malone and Johnson, Worker’s Compensation, 13 La.Civ. Law Treatise § 291.

Such was not the case, however. Mr. Hebert sent his letter directly to Mr.

Arceneaux, with a copy to his client, Mr. Jeansonne. It was that action, not the

ultimate decision as to who was correct, that the Board found amounted to an

ethical violation on the part of Mr. Hebert.

Since the Louisiana Supreme Court has already held that Mr. Hebert did not

allege a constitutional challenge to the Board’s procedure in the district court, we

may not now address whether the Board’s sanctions against Mr. Hebert for

expressing his opinion on Mr. Arceneaux’s rehabilitation efforts on behalf of Mr.

Jeansonne was a violation of Mr. Hebert’s right to freedom of speech. That issue

has already been resolved.

Doggedly determined, Mr. Hebert nevertheless argues that the trial court

erred in its summary judgment ruling by failing to consider the issue of “ulterior

purpose.” He claims the trial court confused its finding that the Board’s full

compliance with the administrative process, which governs how an ethical

complaint against a VRC is handled, equaled the inability of Mr. Hebert to prove

an abuse of process tort claim. We will address separately below the motions for

summary judgment filed by Mr. Arceneaux and the Board on this issue.

Mr. Sy Arceneaux

It is evident from a review of the record that Mr. Arceneaux properly

presented evidence, including depositions, exhibits, and an affidavit sufficient to

support his motion for summary judgment seeking to dismiss Mr. Hebert’s claim

for abuse of process. The documentation submitted reflects the only two actions

10

taken by Mr. Arceneaux were both entirely within the procedural parameters of the

administrative process which governs VRC’s.

First, Mr. Arceneaux filed an ethical complaint with the Board. The

complaint alleged that Mr. Hebert had violated La. Admin. Code tit. 46, pt.

LXXXVI, §1604(A)(6), by writing two separate letters to Mr. Arceneaux which

were also sent to his client, Mr. Jeansonne. In the correspondence, Mr. Hebert

criticized Mr. Arceneaux’s rehabilitation work, calling it substandard and referring

to Mr. Arceneaux’s services to Mr. Jeansonne as “sham rehabilitation.” It is

undisputed that Mr. Hebert was the author of the correspondence. Second, Mr.

Arceneaux testified at the January 6, 2005 hearing held in joint session before the

Ethics Committee and the Board. The complaint and the affidavit of Mr. Hebert

confirming his testimony under oath at the January 6, 2005 hearing were

introduced in evidence at the summary judgment hearing.

Mr. Hebert argues that there was collusion or a conspiracy between Mr.

Arceneaux and the Board. However, the record is devoid of any documentation to

support such a claim. In his deposition, which also was submitted into evidence at

the summary judgment hearing, Mr. Hebert states in response to counsel’s question

about whether he had any documentation to support his conspiracy theory,

“Correct. There are no documents between Sy Arceneaux and the board to prove

the conspiracy. I only have what they did, which - - which I will show through

testimony that I think they did.”

To the contrary, when Mr. Arceneaux was asked by the Board for his input

concerning the sanctions that should be imposed against Mr. Hebert for his ethical

violation, Mr. Arceneaux responded through his attorney in correspondence dated

January 19, 2005, that he would defer “to the Board’s decision in that regard.”

11

Having reviewed the actions of Mr. Arceneaux, which included filing an

ethical complaint against Mr. Hebert with the Board and testifying at the hearing

on January 6, 2005, we find, as did the trial court, that Mr. Hebert has failed to

carry his burden to provide any evidentiary support for his claim that the

administrative process had been improperly manipulated by Mr. Arceneaux.

Likewise, there was no evidence introduced to support Mr. Hebert’s claim that a

conspiracy existed between Mr. Arceneaux and the Board sufficient to fulfill the

necessary “ulterior purpose” element in order for Mr. Hebert to maintain his claim

for abuse of process. Thus, we affirm the trial court’s ruling granting summary

judgment in favor of Mr. Sy Arceneaux.

Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of
Examiners

It is likewise undisputed that the Board is charged by statute with the

obligation to adopt and to enforce an ethics code. As thoroughly discussed, the

Board followed each and every procedural step required when an ethical complaint

is filed. Mr. Hebert received every procedural protection required and was given

ample opportunity to defend himself against the ethical complaint made by Mr.

Arceneaux. Mr. Hebert did not appeal the decision of the Board, and it is now

final, precluding any challenge to the sanctions imposed. Mr. Hebert has, in fact,

accepted and performed the required discipline imposed by the Board.

The exhibits submitted by the Board in support of its motion for summary

judgment demonstrate that the administrative process was followed without

exception. This fact, coupled with the lack of any documentation submitted into

evidence by Mr. Hebert that any conspiracy existed between the Board and Mr.

Arceneaux in the administrative process, leads us to the same conclusion as the

12

trial court, Mr. Hebert simply did not provide factual support for the second

element of a claim for abuse of process, “whether or not there was an aberration in

the proceedings.” Therefore, we also affirm the trial court’s ruling granting

summary judgment in favor of Louisiana Licensed Professional Vocational

Rehabilitation Counselors Board of Examiners.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment granting the

motions for summary judgment filed on behalf of the Louisiana Licensed

Professional Vocational Rehabilitation Counselors Board of Examiners and Sy

Arceneaux and dismissing this entire matter with prejudice at plaintiff Glenn M.

Hebert’s costs. All costs of this appeal are assessed against Glenn M. Hebert.

AFFIRMED.

This opinion is not designated for publication. Uniform Rules—Courts of

Appeal, Rule 2–16.3.

13

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-102

GLENN M. HEBERT

VERSUS

LOUISIANA LICENSED PROFESSIONAL VOCATIONAL
REHABILITATION COUNSELORS BOARD OF EXAMINERS AND
SY ARCENEAUX

COOKS, J., dissents.

I dissent from the majority opinion affirming the grants of summary

judgment in favor of Arceneaux and the Board. In the motions for summary

judgment, it was argued the action brought against Hebert and ruled on by the

Board is not a “process” for which an “abuse of process” action can be maintained.

A previous panel of this court addressed this issue in Hebert v. Louisiana Licensed

Professional Vocational Rehabilitation Counselors, 07-610, pp. 7-8 (La.App. 3

Cir. 3/04/09), 4 So.3d 1002, 1009-10, writ denied, 09-750 (La. 5/22/09), 9 So.3d

144, and noted the following:

In Simon v. Perret, 619 So.2d 155, 157 (La.App. 3 Cir.1993),
we noted “[a]buse of process is a cause of action originating from the
common law and recognized under our jurisprudence as a
compensable tort under > LSA-C.C. art. 2315.” See Mini-Togs, Inc. v.
Young, 354 So.2d 1389 (La.App. 2 Cir.1978). This court in Vasseur
v. Eunice Superette, Inc., 386 So.2d 692 (La.App. 3 Cir.), writ denied,
393 So.2d 747 (La.1980), stated the essential elements of a cause of
action for abuse of process are (1) the existence of an ulterior purpose;
and (2) a wilful act in the use of the process not in the regular
prosecution of the proceeding.
In the Law of Torts, Volume I, § 4.9 at p. 330, Harper and
James, make clear that an abuse of process occurs “[w]hen the actor
employs legal process in a manner technically correct, but for a
wrongful and malicious purpose to obtain an unjustifiable end or an
object which it was not the purpose of the particular process employed
to effect.” “The action is not for the wrongful bringing of an action or
prosecution, but for the improper use, or rather ‘abuse’ of process in
connection therewith ... [that is], for a perversion of legal process.”
Id. The wrong lies in the use to which the process is put. If it is in fact
used to redress a legal wrong, the person who invoked the legal
process cannot be said to have committed any tort, even if his motive
was vicious or vindictive. However, when he seeks by the use of such

process to “attain some collateral objective, outside the scope of the
operation of the process employed,” a tort arises. Id. at 331.
....
However, “[a]t issue in [an abuse of process action],” as noted by the
Fourth Circuit Court of Appeal in Goldstein, “is the intent to use a
legal process for an improper reason, not the statements made . . . but
the fact that a proceeding was maliciously and/or illegally pursued.”
Goldstein, 496 So.2d at 415. It is the “hidden” or ulterior motive that
drives this claim and the improper end it seeks to achieve. . . . No
person has the right under either constitution, if it is their intent, to
utilize the legal process to quell the free speech rights of another
individual, to interfere with the administration of justice, or to
undermine the objectives and mandates of Louisiana's workers’
compensation laws. Mr. Hebert in this case is also seeking to protect
his right to speak on a public issue and to render his expert opinion on
matters involving the rehabilitative care of patients. The gist of his
complaint is simple. He alleges that Mr. Arceneaux and the Board
conspired in instituting a disciplinary proceeding against him for the
ulterior purpose of suppressing his ethical and professional duty to his
clients, the judicial system, and the mandates of workers’
compensation law to disclose substandard rehabilitative services. His
claim does not rest on the institution of the disciplinary action, the
Board’s authority or the constitutionality of the subject disciplinary
rule; rather, he asserts Mr. Arceneaux’s and the Board’s legal motive,
i.e. fostering professionalism between rehabilitative counselors, is not
the only motive which compelled them to use the disciplinary process.
The ulterior motive in this case is an intent to prevent him from
commenting on the substandard work of other rehabilitative
counselors and from exposing such practices in open court or when
called to render his expert opinion. The petition as drafted sufficiently
states a claim for abuse of process, the merit of which we are not
called to address at this time.

The argument that the Board’s system is not subject to the tort of “abuse of

process” was clearly rejected by this court. Whether it is ultimately concluded that

Hebert’s allegations have merit is not properly disposed of in a summary

proceeding as done below and affirmed by the majority. Therefore, I would

reverse the grants of summary judgment in this matter and remand for a full trial

on the merits.