source: Caselaw Access Project

author: | PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael A. BERNARD.
    No. 2002-KA-1644.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.
    Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Anne M. Dickerson, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appel-lee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD).
   | PATRICIA RIVET MURRAY, Judge.

Michael A. Bernard appeals his conviction for one count of aggravated oral sexual battery. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On June 27, 2001, Michael Bernard was charged by bill of information with one count of aggravated oral sexual battery in violation of La. R.S. 14:43.4, and two counts of sexual battery, in violation of La. R.S. 14:43.1. At arraignment on July 2, 2001, Mr. Bernard pled not guilty. Following a hearing on defense motions on July 16, 2001, the trial court denied the motions to suppress the evidence and identification and found probable cause.

The jury trial began on August 20, 2001 with the selection of six jurors. On the following day, Mr. Bernard filed a motion to quash based on double jeopardy, which was denied. The jury found Mr. Bernard guilty as charged on all three counts. On September 14, 2001, Mr. Bernard filed motions for new trial and post verdict judgment of acquittal, which were both denied. The trial court sentenced him on count one (aggravated oral sexual battery) to thirteen years at hard labor and on counts two and three (sexual battery) to seven years at hard labor. The Llatter sentences on counts two and three were ordered to be served concurrently with each other and consecutively to the former sentence on count one. Mr. Bernard filed a motion to reconsider sentence, which was denied. He also filed a motion for appeal and designation of the record. The state then filed a habitual offender bill of information. Following a multiple bill hearing, the trial court found Mr. Bernard to be a second felony offender, vacated the sentence on count one, and imposed a thirty-year sentence. This appeal followed.

STATEMENT OF FACTS

On Mardi Gras day in February 2001, eight-year old M.M. and her older sister attended a parade with their adult cousin, Tomika Neely. While they were waiting for the parade, Ms. Neely overheard the sisters arguing. In the midst of their argument, Ms. Neely heard the older sister tell M.M. “that’s why Michael stuck you in the booty, in the rectum.” Disturbed by what she had overheard, Ms. Neely questioned M.M. M.M. related to Ms. Neely that Mr. Bernard, her mother’s former boyfriend, had sexually molested her. When they returned home from the parade, Ms. Neely revealed what M.M. had told her to her mother (M.M.’s aunt). M.M.’s aunt then called both M.M.’s mother and the police.

At trial, M.M.’s mother, Andre’ Mims, related that the incidents occurred while she and several of her children were living with Mr. Bernard at 2613 Egania Street in New Orleans. They lived there from approximately October 2000 until February 2001 and apparently had moved sometime before Mardi Gras day. Ms. Mims further testified that she did not notice anything unusual about her daughter |3while they were living on Egania Street except that M.M. frequently complained of a pain in her bottom.

M.M.’s older sister testified that frequently in the evening while their mother was at work and she and M.M. were watching television, Mr. Bernard would call M.M. into the master bedroom and close the door. When M.M. would come out often she would be crying and complaining that her bottom hurt. The sister also testified that on one occasion Mr. Bernard called her into the master bedroom and told her to pull her pants down, but she refused and went back into her room.

M.M. testified that there were several incidents and that the last one occurred about two weeks before they moved from Egania Street. She stated that Mr. Bernard would call her into the master bedroom and tell her to take off her clothes and that she would tell him that she did not want to. He would then remove her clothes, start kissing her, put his finger up her rectum, and lick her “private part.” M.M. further testified that a similar incident occurred on the living room sofa while her mother was on the telephone. On other occasions M.M. stated that Mr. Bernard would remove her clothes, make her touch him on his private part, and place his private part in her mouth. She stated that a white substance would come out of his private part. M.M. still further testified that Mr. Bernard told her not to tell anyone about these incidents and that if she did tell anyone about them, that something bad would happen to her mother, sister; and little brother. She stated that she believed him.

Dr. Scott Benton, who was qualified as an expert in the field of pediatric forensic medicine, testified that in March 2001 his partner performed a physical examination of M.M. Although the results of that examination were normal, Dr. Benton testified that it was typical for a victim of M.M.’s age to have a normal | ¿physical examination despite sexual abuse of the nature alleged to have occurred. Detective Larry Singleton of the New Orleans Police Department Child Abuse Unit also testified regarding the details of the investigation and arrest of Mr. Bernard.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

Mr. Bernard asserts two intertwined assignments of error. First, he alleges that the trial court erred in failing to order a mistrial after the jury was twice unable to reach a unanimous verdict on the charge of aggravated oral sexual battery. Second, he asserts that in the event the first error was not preserved for appellate review due to his trial counsel’s failure to object to the jury’s continued deliberation, that his trial counsel was ineffective.

Jury polling is governed by La.C.Cr. Pro. art. 812, which provides:

The court shall order the clerk to poll the jury if requested by the state or the defendant. It shall be within the discretion of the court whether such poll shall be conducted orally or in writing by applying the procedures of Paragraph (1) or Paragraph (2) of this Article.
(1) Oral polling of the jury shall consist of the clerk’s calling each juror, one at a time, by name. He shall announce to each juror the verdict returned, and ask him, “Is this your verdict?” Upon receiving the juror’s answer to the question, the clerk shall'record the answer.
If, upon polling all of the jurors, the number of jurors required by law to find a verdict answer ‘Tes,” the court shall order the clerk to record the verdict and the jury shall be discharged. If, upon polling all of the jurors, the number required to find a verdict do not answer ‘Tes,” the jury may be remanded for further deliberation, or the court may declare a mistrial in accordance with Article 775.
(2) The procedure for the written polling of the jury shall require that the clerk hand to each juror a separate piece of paper containing the name of the juror and the words “Is this your verdict?” _[¿Each juror shall write on the slip of paper the words “Yes” or “No” along with his signature. The clerk shall collect the slips of paper, make them available for inspection by the court and counsel, and record the results. If a sufficient number of jurors as required by law to reach a verdict answer “yes” the clerk shall so inform the court. Upon verification of the results, the court shall order the clerk to record the verdict and order the jury discharged. If an insufficient number required to find a verdict answer ‘Tes,” the court may remand the jury for further deliberation, or the court may declare a mistrial in accordance with Article 775.

Mistrials are governed by La.C.Cr.P. art. 775, which provides:

A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceeding which would make any judgment entered upon a verdict reversible as a matter of law.

In this case, when the six-person jury returned to the courtroom after deliberations to deliver its verdict, the trial judge read aloud the verdict from the verdict sheet as to both counts. The judge then addressed the foreperson and asked if that was the verdict of the jury, and the foreperson replied affirmatively. The judge then addressed the entire jury and asked them if that was their verdict. An unidentified juror responded, stating “[c]an you read the first verdict again, please?” The judge then re-read aloud the verdict as to count one, which was guilty of oral sexual battery. The judge then asked the jury whether this was their verdict. Again, an unidentified juror (apparently the same one) responded it was not. The trial judge then returned the jury to the jury room, stating “[l]et me send you all back upstairs to give you an opportunity to look at the verdict sheets again and your polling slips.” The judge reminded the jury that the verdict had to be unanimous. At that point, the jury returned to the jury room.

IfiWhen the jury returned to the courtroom, the judge instructed the foreperson to rewrite the verdict on the verdict sheet, as the previous verdict (oral sexual battery) had been scratching through and replaced with aggravated oral sexual battery. The judge then distributed a second set of polling slips to the jurors and asked that each juror write out the entire verdict on the polling slip so that the record would be clear. The record reflects that the judge had them do this in the courtroom, stating “you all don’t have to move out of your seats if you can write it right here.”

A review of this second set of polling slips reflects that three jurors wrote “guilty of aggravated oral sexual battery” (with some spelling errors); two jurors wrote, “guilty of aggravated sexual battery” (again with some spelling errors), and the final juror (whose handwriting is difficult to decipher) apparently wrote “guilty of sexual battery.” The judge then sent the jurors with the verdict sheet back to the jury room to complete the individual polling slips a third time In so doing, the judge instructed them that “[i]t has to read like one of these verdict[sie] on this [responsive verdictjsheet.”

When the jury returned to the courtroom, the judge instructed the foreperson to write the verdict a third time on the verdict sheet. The verdict sheet and all six polling slips reflect the verdict of guilty of aggravated oral sexual battery. The judge thus found that “[a]ll six have concurred in reaching this verdict” and ordered that “the verdict is proper as to form and content.” Finally, the court stated for the record:

With the polling slips, we likewise wanted to make very, very sure that the polling slips conformed with the verdict that was written out by the foreperson, and that there was no discrepancy or no indication that anything had changed or there were any further 17deliberations. We were just making sure that the form and format was complete.

On appeal, Mr. Bernard argues that after the second polling of the jurors it was clear that the jurors did not understand their job — reaching a proper verdict — and that his trial counsel should have recognized this and either objected or moved for a mistrial. He further contends that the trial court on its own should have recognized this and declared a mistrial, as permitted by La.C.Cr.P. arts. 775 and 812. He argues that by allowing the jurors to continue deliberating there was a risk that a minority of jurors would have undue influence on the majority. He suggests that because the jurors had some difficulty in completing the second set of polling slips and because the third set were completed without error the jurors must have assisted one another in completing them.

Mr. Bernard’s trial counsel’s failure to make a contemporaneous objection to the trial court’s polling procedures precludes him from raising an objection regarding those procedures for the first time on appeal. State v. Amato, 96 0606, p. 23 (La.App. 1 Cir. 6/30/97), 698 So.2d 972, 988 (citing La.C.Cr.P. art. 841 A; State v. Gardette, 352 So.2d 212, 215 (La.1977); State v. Sosa, 328 So.2d 889, 892 (La.1976)). Nonetheless, even if Mr. Bernard had preserved the issue for appellate review, this argument is unpersuasive and thus his assignment of error regarding his counsel’s ineffective assistance is without merit.

The alleged error in polling the jury apparently resulted from the foreperson writing the wrong verdict on the first verdict sheet. The judge’s efforts to ensure that the intention of the jury was accurately reflected by the verdict were clearly Improper. The record reflects, as noted above, that the jurors were asked to complete the second set of polling slips while seated in the jury box without the benefit of the list of responsive verdicts. In contrast, the jury completed the third set of polling slips in the jury room with the benefit of the list of responsive verdicts. Indeed, the trial court expressly instructed the jurors to take the list of responsive verdicts with them to the jury room and to conform to that list in completing their slips the third time. Accord-mgly, there is nothing to suggest that either a minority of jurors had an undue influence on the majority or that the trial court pressured the jurors to reach a unanimous vote.

State v. Curtis, 99-45 (La.App. 5 Cir. 7/27/99), 739 So.2d 931, involved a situation similar to the present one. In Curtis, the jury returned to the courtroom following deliberations and handed in a verdict form that merely indicated guilty. The judge returned the verdict form to the foreperson and instructed her to write the appropriate crime on the form. Thereafter, the clerk read the verdict, which was guilty of attempted illegal carrying of a firearm by a convicted felon. A polling of the jury showed a vote of ten “yes” and two “no.” Immediately thereafter a juror stated that there was some confusion and that the polling was inaccurate. The court then gave the jury another verdict form and instructed the jury to return to the jury room and complete the form properly in accordance with the vote of the jury. Defense counsel objected to the procedure and requested a mistrial. The judge denied the defendant’s motion for mistrial stating, “it is clear to me that this foreperson changed the verdict of the jury on her own and there’s obvious confusion. These jurors expected that what they voted on would be read here in Court.” Curtis, 99-45, pp. 16-17, 739 So.2d at 942.

|9On appeal, the defendant in Curtis argued that the multiple deliberations and verdicts created a gross legal defect in the proceedings which warranted the granting of a mistrial and that the re-deliberation after a valid verdict was outside the trial court’s discretion. Although the verdict had already been recorded before the juror expressed that the polling and recorded verdict did not reflect the true intention of the jury, the appellate court in Curtis found that the trial judge handled the matter appropriately and in the only way possible to ensure an accurate verdict given the unique circumstances of the case. See also State v. Brooks, 93-0388 (La.App. 1 Cir.12/29/93), 633 So.2d 659; State v. Haynes, 99 1973, p. 13 (La.App. 1 Cir. 6/23/00), 762 So.2d 1247, 1255 (noting “mistrial is required only where the jury is unable to reach a verdict by the proper concurrence.”)

Likewise, as in Curtis, the foreperson in this case wrote the wrong verdict on the first verdict sheet, and the trial court’s attempts to ensure that the jury’s intention was accurately reflected by the verdict were therefore proper. We thus find Mr. Bernard’s argument unpersuasive.

DECREE

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

      .As the state points out, Mr. Bernard’s assignments of error pertain only to count one, aggravated oral sexual battery. He failed to assign any error as to the other count. As a result, only count one is before us on appeal.

      . On April 12, 2002, Mr. Bernard filed a pro se writ application with this court. Granting the writ, we ordered the trial court to rule on Mr. Bernard’s motion for appeal.

      . Due to the nature of the offense the victim’s initials, M.M., have been used.

      . As the state suggests, to the extent Mr. Bernard assigns error as to the form of the verdict, such error is subject to patent error review as part of the "pleadings and proceedings.” La.C.Cr.P. art. 920(2).


author: 1EDWIN A. LOMBARD, Judge.

text:
    Gary BARRILLEAUX, Beau Barrilleaux and Luke Barrilleaux v. Kylane Shane BARTHELEMY and Plaquemines Parish Government.
    No. 2002-CA-1416.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.

      Philip F. Cossich, Jr., Darren D. Su-mich, Cossich, Sumich & Parsiola, L.L.C., Belle Chasse, LA, for Plaintiff/Appellee.
    Michael L. Mullin, Assistant Parish Attorney, Belle Chasse, LA, and Philip D. Nizialek, Teresa L. Deford, Rathwell & Nizialek, P.C. The Woodlands, TX, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS Sr., Judge EDWIN A. LOMBARD).
   1EDWIN A. LOMBARD, Judge.

FACTS AND PROCEDURAL HISTORY

On July 6, 2001, Gary Barrilleaux and his wife of 26 years, Laurie, were traveling northbound on Louisiana Highway 39 in Plaquemines Parish on their 2000 Harley Davidson motorcycle. Suddenly and without warning or signal, Kylane Shane Bar-thelemy pulled out from the shoulder of the highway in a pickup truck attempting to make a left-hand U-turn. Mr. Barthele-my failed to check for oncoming traffic and struck the motorcycle ridden by Gary and Laurie as he pulled onto the highway.

The pickup truck was owned by the Plaquemines Parish government and Mr. Barthelemy was in the course and scope of his employment with the Parish when the accident occurred. He had been parked on the shoulder of Highway 39 waiting for the Parish’s grass-cutting crews to finish the area.

The collision resulted in severe injuries for the Barrilleauxs. Although both Gary and Laurie were wearing helmets, they each sustained serious injuries. Gary suffered a severe, distal radius fracture to his right wrist requiring an open [¿reduction with an internal fixation using plates and screws and an external fixation with a halo-type device. He also suffered a dislocated and fractured pelvis, which required an internal fixation with plates and screws. Additionally, the nerves in his left (dominant) hand were injured so badly that it has left several fingers nonfunctional. He had an open wound fracture to the distal radius of his left wrist requiring an internal fixation using plates and screws. Multiple ribs were fractured and his left lung was punctured and it subsequently collapsed, which required a chest tube. His spleen was ruptured. His liver had a he-matoma. His sternum was fractured. He also suffered scrotal edema, sacroiliac dislocation, broken toes, cardiac arrhythmia, memory loss and cognitive damage. The resulting psychological trauma included severe depression and post-traumatic stress syndrome.

Laurie suffered injuries even more severe than Gary’s, and finally died as a result of the accident. She lay on the highway conscious and suffering, waiting for medical help to arrive, and praying with passersby who tried to give her comfort. Eventually, emergency help arrived and she was transported to Charity Hospital by ambulance where she was pronounced dead sometime later.

The Parish stipulated that the accident was caused solely through the fault of its employee, Mr. Barthelemy. The trial court ruled that, under the stipulated facts, there exist three separate $500,000.00 general damage caps under Louisiana R.S. 13:5106 for each of the plaintiffs’ claims: (1) personal injury claim by Gary pursuant to La. Civil Code art. 2315 for the injuries he sustained; (2) personal ^injury claim pursuant to La. Civil Code art. 2315.1 asserted by Gary and his sons for the personal injuries Laurie sustained prior to her death (i.e., the survival action); and (3) wrongful death claim pursuant to La. Civil Code art. 2315.2 brought by Gary and the sons for the loss they sustained as a result of Laurie’s death (wrongful death action).

ANALYSIS

Appellants, Mr. Barthelemy and the Plaquemines Parish Government (“the Parish”), argued in support of its motion for partial summary judgment that under the facts of this case where injuries were sustained at one time in one accident, the relevant statutory cap applied in a per victim manner; thus, there could only be $500,000.00 awarded for Gary’s injuries and the same amount awarded for Laurie’s injuries and death for a total of $1 million dollars, as opposed to $1,500,000.00 awarded by the trial court.

The Parish bolsters its argument by the following assertions: (1) the history of the statute requires a less expansive interpretation than was given by the trial court; (2) the legislative intent underlying the statute’s enactment is to shield government entities from “runaway” verdicts and preserve the public fisc, thus, this intent would be best served by the Parish’s statutory interpretation rather than the trial court’s ruling; (3) the 1996 amendment is indicative of the legislature’s intention to provide only one cap per victim for both personal injuries and subsequent death; and (4) the interpretation afforded the statute by the trial court’s ruling would lead to disparate results depending upon whether or not a decedent |4left behind a statutory wrongful death claimant, and whether or not a fatally injured victim survived before expiring.

The Parish cites Conerly v. State, 97-0871 (La.7/8/98), 714 So.2d 709, which discusses the statutory cap on medical malpractice damages, and asserts that it is analogous to the 13:5106 governmental entity cap. In Conerly, the court held one statutory cap applied to both the survival action and the wrongful death actions brought by the parents of a girl who died shortly before her fifth birthday from complications caused by malpractice at her birth.

Essentially, the Parish asserts that it is necessary to look to the legislative intent to interpret this statute pursuant to the mandate of the civil code: “When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. Civ.Code art. 10. Appellant acknowledges, however, that the civil code also provides that “[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall-be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Civ.Code art. 9.

Conversely, appellees assert that the statute is clear and unambiguous. The statutory cap for governmental subdivisions applies to each claim, not each victim. Appellees cite a myriad of cases supporting the proposition that when a law is clear and unambiguous, and such law does not lead to absurd consequences, the law shall be applied as written. See, e.g., ABL Management, Inc. v. Board of Supervisors of Southern Univ., 2000-0798 (La.11/28/00), 773 So.2d 131, 135. | ^Additionally, our supreme court has instructed that “words in a statute are to be construed according to their popular and commonly accepted meaning, absent strong reasons to do otherwise.” Sales Tax Dist. No. 1 v. Express Boat Co., 500 So.2d 364, 368 (La.1987). Hence, the Bar-rilleauxs’ position is that the statute’s meaning is clear and there is no need to inquire into the legislative intent underlying the statute.

Thus, the threshold legal issue before this Court is whether R.S. 13:5106 is clear and unambiguous as drafted, or whether it contains ambiguity such that the legislative intent must be discerned. For the reasons that follow, we find that the statute is unambiguous as written, and therefore, we affirm the trial court’s ruling.

Louisiana R.S. 13:5106, in pertinent part, provides as follows:

B. (1) In all suits for personal injury to any one person, the total amount recoverable, including all derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings, and loss of future earnings, as provided in this Section, shall not exceed five hundred thousand dollars.
(2) In all suits for wrongful death of any one person, the total amount recoverable, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars.
D. (4) “Derivative claims” include but are not limited to claims for survival or loss of consortium.

The plain wording of the statute, ie., subsection B(l), supports the conclusion that there exists one cap for personal injury damages and that such damages include all derivative claims. “Derivative claims” is a term defined in subsection D(4) to include survival claims. Therefore, based upon the plain reading of the statutory language, Laurie’s survival action, ie., the claim asserted | fiby her surviving husband and sons for Laurie’s personal suffering while she lived, is limited to one $500,000.00 cap.

Additionally, the plain language of the statute in subsection B(2) that governs caps on wrongful death supports the conclusion that there exists a separate $500,000.00 cap for wrongful death claims. Nowhere in the statute is there any language that limits the recovery to one cap per victim, as the Parish contends. The plain reading of the statute provides for one cap on personal injury damages (including survival actions for those personal injury damages) and one cap for wrongful death damages. The trial court’s decision, which awarded Laurie’s survivors two separate recoveries of $500,000.00 each — one for the personal injuries she suffered prior to her death and the other for the death itself — was correct.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


author: 1WILLIAM H. BYRNES, III, Chief Judge.

text:
    Rita Garnet CHIASSON, Sandra C. Hotard, Jimmie Chiasson, Rusty Chiasson, Debra Stevens, and Glenda Miller v. McDERMOTT INCORPORATED and The Travelers Insurance Company.
    No. 2002-CA-2336.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.
    Frank J. Swarr, Mickey P. Landry, Landry & Swarr, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Gordon P. Wilson, Kristopher T. Wilson, Ralph S. Hubbard, III Lugenbuhl, Whea-ton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, and Judge MICHAEL E. KIRBY).
   1WILLIAM H. BYRNES, III, Chief Judge.

The Travelers Indemnity Company (“Travelers”) appeals the trial court’s denial of the exception of improper venue. We affirm in part and remand.

On May 17, 2002, the survivors of Joseph J. Chiasson instituted the present wrongful death and survival action against the defendants, alleging that Chiasson died as a result of occupational exposure to asbestos while working for the defendant McDermott, Inc. Included as defendants were 14 of Chiasson’s co-workers and executive officers of McDermott, Inc. and Travelers, their insurer.

Travelers filed exceptions of non-joinder of an indispensable party, no cause of action, no right of action and improper venue on August 22, 2002. After a hearing on October 4, 2002, the trial court rendered judgment on October 14, 2002, denying Travelers’ exceptions. The trial court granted Travelers’ motion to appeal the denial of the exception of improper venue.

On appeal, Travelers contends that venue is not proper in Orleans Parish under the Direct Action statute. La. R.S. 22:655(B) provides in pertinent part:

The injured person or his or her survivors or heirs mentioned in Subsection A, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and |2the insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only....

In Rufus Boatwright v. Metropolitan Life Ins. Co., 95-2525 (La.App. 4 Cir. 3/27/96), 671 So.2d 553, this Court held that the exceptions to La. C.C.P. art. 42 established by C.C.P. arts. 71 through 85 do not apply to cases against direct action insurers. See also 1989 Official Comment, La. R.S. 22:655.

In the present case, Travelers maintains that the decedent worked for McDermott, Inc. in St. Mary Parish. Travelers is a foreign insurer and as insurer for McDer-mott, properly could have been sued in East Baton Rouge Parish under La. C.C.P. art. 42. Of the 14 co-employee executive officers, plaintiffs alleged that 12 are either dead or cannot be located. Under La. C.C.P. art. 42, suit also could have been filed properly in Assumption Parish or St. Mary Parish where the two remaining employees, Addison Daigle and J. Dennis David, are domiciled.

In Dempster v. A.P. Green Industries, Inc., 99-2198 (La.App. 4 Cir. 1/26/00), 753 So.2d 330, this court held that venue at a tortfeasor’s domicile is not lost when the tortfeasor dies. This court stated: ... “provisions regarding exceptions to the general venue article based on solidary liability may be applied to solidary obligors properly sued under the Direct Action Statute.” Id., 753 So.2d at 333.

The plaintiffs in the present case argue that the trial court’s denial of the exception of improper venue should be upheld because the individual domiciles of the 12 remaining co-employees executive officers have not yet been determined. The plaintiffs argue that with additional discovery, they may still be able to show |sthat the domicile of one of the remaining 12 defendants, solidary obligors, was in Orleans Parish.

Travelers asserts that the question of venue is strictly a question of law, and the issue must be reviewed de novo on appeal. City of New Orleans v. Bd. Of Com’rs of Orleans Levee Dist., 93-0690 (La.7/5/94), 640 So.2d 237. However, in the present case, the trial court did not rule on the merits but denied the exception of improper venue at this time, and allowed the plaintiffs additional time to determine the domiciles of the 12 remaining McDermott co-employee executive officers. The trial court has broad discretion in handling discovery matters. Bergeron v. Pan Ameri can Assur. Co., 98-2421 (La.App. 4 Cir. 4/7/99), 731 So.2d 1037; Connick v. Brechtel, 98-0543 (La.App. 4 Cir. 4/22/98), 713 So.2d 583, writ denied 98-1404 (La.6/3/98), 720 So.2d 1202.

In the present case, the trial court did not abuse its broad discretion in allowing additional time for the plaintiffs to discover the proper domiciles of the 12 co-employee executive officers, solidary obligors, before finding whether venue is proper in Orleans Parish.

Accordingly, we vacate the trial court’s denial of the Travelers’ exception of improper venue because it is premature. We affirm the trial court’s discretionary determination to allow the plaintiffs additional time to discover whether venue is proper in Orleans Parish. After additional discovery, the trial court may rule on the exception of improper venue. The case is remanded for further proceedings.

AFFIRMED IN PART & REMANDED.


author: 1MICHAEL E. KIRBY, Judge. 1JONES, J.,

text:
    Danatus Norman KING v. PHELPS DUNBAR, L.L.P., et al.
    No. 2001-CA-1735.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.

      Danatus N. King, New Orleans, LA, for Plaintiff/Appellant.
    Robert E. Kerrigan, Jr., Ellis B. Murov, Charles F. Seemann, III, Deutsch, Kerri-gan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   1MICHAEL E. KIRBY, Judge.

Plaintiff, Danatus King, appeals the trial court’s judgment granting summary judgment in favor of defendant, Phelps Dunbar L.L.P., and dismissing plaintiffs action.

In 1996, plaintiff sued the Phelps Dunbar law firm and several of its partners, alleging constructive discharge because of racial discrimination and intentional infliction of emotional distress. Plaintiff claims that he was assigned to cases because of his race, and after rejecting those assignments, his work was unfairly criticized and assignments were withheld in order to force him to resign from the firm.

The trial court granted summary judg-’ ment dismissing the plaintiffs claims against the individual defendants, and also granted the exception of prescription filed by all of the defendants, dismissing plaintiffs claims against both the individual defendants and the law firm. This Court affirmed that trial court judgment in King v. Dunbar, 97-2519 (La.App. 4 Cir. 6/3/98), 716 So.2d 104. In King v. Phelps Dunbar, L.L.P., 98-1805 (La.6/4/99), 743 So.2d 181, the Louisiana Supreme Court affirmed the summary judgment dismissal of plaintiffs claims against the individual defendants. However, the Supreme Court vacated this | ^Court’s affirmation of the granting of the exception of prescription against all defendants, and remanded the case to the trial court for trial on the merits. Due to the Supreme Court’s decision; the only remaining defendant is the Phelps Dunbar law firm (hereinafter referred to as “Phelps”).

On ’ February 20, 2001, Phelps filed a motion for summary judgment against plaintiff. In support of this motion, Phelps filed an original memorandum and attached to it a statement of material facts and the following exhibits: 1) an affidavit from Roy Cheatwood; a partner in its Commercial Litigation Section; 2) an affidavit from Jenny Chunn, its former Director of Legal Personnel and Client Services; 3) an affidavit from William Howard, a partner who represented the New Orleans Aviation Board; 4) the plaintiffs petition; 5) excerpts from plaintiffs depositions; 6) an affidavit from Reuben Anderson, a black partner in charge of minority hiring at the firm when plaintiff was hired; 7) articles from the New Orleans Times Picayune reporting results of elections in which plaintiff ran for positions on the New Orleans School Board and City Council; 8) an affidavit from Harry Rosenberg, a partner at the firm; 9) an affidavit from Paul Peyronnin, a partner at the firm; 10) invoices from plaintiff to clients for legal services rendered after he left Phelps; 11) copies of plaintiffs federal income tax returns for the years 1995 through 1999; and 12) bank statements for plaintiffs law office accounts.

Phelps later filed a supplemental memorandum in support of its motion for summary judgment, and attached to it copies of various discovery-related correspondence involving plaintiffs suit against Phelps. A second supplemental memorandum included a supplemental statement of material facts and the affidavit of M. Nan Alessandra, a partner at Phelps who served as the hiring partner in | .^connection with the recruitment of attorneys in the early 1990’s. Also attached to this memorandum was literature from the American Bar Association’s Commission on Racial and Ethnic Diversity in the Profession. Phelps subsequently filed a third supplemental memorandum. Attached to that memorandum were the following: 1) a writ disposition from this Court in this matter; 2) notes taken by plaintiff documenting alleged discrimination toward him by Phelps; and 3) pleadings filed by plaintiff on behalf of the New Orleans Aviation Board after plaintiff left Phelps.

In opposition to Phelps’ motion for summary judgment, plaintiff filed a memorandum and the following exhibits: 1) excerpts from the deposition of Penelope Cabibi; a former secretary of Phelps partner Roy Cheatwood; 2) correspondence between King and counsel for Phelps; 3) an affidavit from plaintiff; and 4) excerpts from plaintiffs deposition. Plaintiff subsequently filed a supplemental memorandum, and attached to that memorandum excerpts from plaintiffs deposition and from the depositions of the following Phelps partners: Roy C. Cheatwood, Nancy Scott Degan, David J. Krebs, Harry Smith Redmon, Jr., Harry Rosenberg, Danny G. Shaw, Paul L. Peyronnin, Brent. B. Barriere and William Howard.

Plaintiff filed a second supplemental memorandum in opposition to the motion for summary judgment. Attached to this motion were plaintiffs previously submitted affidavit and more excerpts from the depositions of David J. Krebs, Danny G. Shaw, plaintiff, Nancy Scott Degan, Harry Smith Redmon, Jr., Roy C. Cheatwood, Paul L. Peyronnin, Brent B. Barriere, William Howard and Penelope Cabibi. Many of the excerpts attached to the second supplemental memorandum were duplica-tive of those attached to earlier memoran-da. Additionally, plaintiff Dattached a. letter to him from Roy Cheatwood regarding plaintiffs temporary working arrangement with Phelps following his resignation.

On March 26, 2001, the trial court denied defendant’s motion for summary judgment based on plaintiffs representation that he had not had an adequate opportunity to conduct discovery. The trial court allowed plaintiff one month to conduct discovery for the purpose of opposing defendant’s motion, and further allowed defendant to re-urge its motion at that time. One day later, plaintiff filed a motion to compel discovery responses asking the trial court to order defendant to provide responses to plaintiffs interrogatories and request for production of documents dated July 1, 1996. The trial court denied the motion to compel, with the exception of ordering defendant to produce plaintiffs time sheets and reading file if they existed.

On April 24, 2001, defendant filed a motion to reset its motion for summary judgment that was originally filed on February 20, 2001. A hearing was held on June 15, 2001, and the trial court granted defendant’s motion for summary judgment on July 5, 2001. Plaintiff now appeals from that judgment.

On appeal, plaintiff raises three assignments of error:

1) The trial court erred in disregarding the Louisiana Supreme Court’s mandate that plaintiffs claims be tried on the merits;
2) The trial court erred in finding genuine issues of material fact did not exist to preclude summary judgment; and
3) The trial court erred in not allowing plaintiff to conduct sufficient discovery prior to hearing defendant’s motion for summary judgment.

We will consider plaintiffs third assignment of error first regarding the trial court’s ruling on his motion to compel discovery responses. The trial court’s ruling on that matter was rendered in a judgment dated April 11, 2001. On May | s22, 2001, this Court stated in its writ disposition in 2001-C-0945 that plaintiff had an adequate remedy on appeal to challenge the trial court’s ruling on his motion to compel.

Plaintiff propounded interrogatories and requests for production of documents to Phelps. He argues that certain of Phelps’ responses were incomplete or evasive, and that he did not have an adequate opportunity to conduct discovery prior to the hearing on Phelps’ motion for summary judgment.

The request for interrogatories for which plaintiff claims he received incomplete or evasive responses can be summarized as follows: (1) lists of attorneys and law clerks employed by Phelps during specific time periods; their addresses and phone numbers; age, race and sex; education; honors; dates of employment; and status with the firm; (2) a list of associates hired during certain years, and their salaries and other employment information; (3) names, addresses, job titles, age, race and sex of minority attorneys hired by Phelps; (4) any racial discrimination claims filed against Phelps or its partners; (5) compliments and criticism about plaintiffs job performance from clients, attorneys, judges and mediators; and (6) a list of meetings between plaintiff and several partners regarding assignment of case files.

The requests for production of documents for which plaintiff claims he received incomplete or evasive responses include documentation related to the requests for interrogatories summarized in the preceding paragraph. Other items requested can be summarized as follows: (1) personnel records; (2) evaluations; (3) minutes of Phelps’ meetings; (4) time sheets of other associates; (5) correspondence from clients requesting that specific associates be assigned to their case files; (6) list of files worked on by plaintiff; (7) documents regarding ^messages from plaintiff to certain partners requesting additional work assignments; (8) documents reflecting incomplete or inadequate job performance by plaintiff and (9) Phelps’ charters, articles of incorporation, partnership agreements, by-laws and shareholder agreements.

Phelps provided some of the information requested by plaintiff, but objected to the interrogatories at issue as overly broad, oppressive, vague, unduly burdensome, and as seeking information protected from disclosure by the attorney-client privilege. Phelps objected to some of the information requested as being neither relevant nor reasonably calculated to lead to the discovery of admissible evidence in the subject matter of this dispute.

With regard to the requests for production of documents, Phelps argues that it produced documents responsive to some of plaintiffs requests, but it objected to producing other documents requested because it would impose upon Phelps an unreasonable and unduly burdensome investigation to obtain information or a document that is, or ought to be, in the possession or control of plaintiff. Other documents sought were not in the possession, custody or control of Phelps. Phelps also objected to production of many of the documents requested as overly broad, oppressive, vague, unduly burdensome, onerous or unreasonably expensive to answer.

Following the motion to compel discovery responses filed by plaintiff on March 27, 2001, the trial court ordered Phelps to produce plaintiffs time sheets and his reading file, assuming that those documents still existed. The court otherwise denied plaintiffs motion to compel, and plaintiff now argues on appeal that the court abused its discretion in doing so.

7 A trial court has broad discretion in ruling on pre-trial discovery, and an appellate court should not upset such a ruling absent an abuse of that discretion. Moak v. Illinois Central Railroad Co., 93-0783 (La.1/14/94), 631 So.2d 401. This broad discretion includes the right to refuse or limit discovery of matters that are not relevant to the issues. Johnson v. Louisiana Department of Labor, Office of Workers’ Compensation, 98-0690 (La.App. 1 Cir. 5/14/99), 737 So.2d 898. After a review of the plaintiffs discovery requests and the responses provided by Phelps, we conclude that plaintiff has not shown that the trial court abused its discretion in its April 11, 2001 ruling on his motion to compel discovery responses.

Furthermore, we note the fact that 4]é years elapsed between the filing of plaintiffs lawsuit and the filing of his motion to compel. In November 1996, Phelps provided plaintiff with a Martindale Hubbell listing of attorneys with the firm from 1990 to 1995 in response to plaintiffs first set of interrogatories. The business addresses and telephoné numbers of these attorneys were publicly available, and plaintiff had ample opportunity to attempt to contact them during this 4% year period.

This assignment of error is without merit.

Plaintiff next argues that the Louisiana Supreme Court’s decision in King v. Phelps Dunbar, L.L.P., 98-1805 (La.6/4/99), 743 So.2d 181, precluded Phelps from subsequently filing its motion for summary judgment. The Supreme Court vacated this Court’s affirmation of the granting of an exception of prescription filed by Phelps and the individual defendants and remanded the case to the trial court for a trial on the merits. As stated above, because the Court also affirmed |sthe summary judgment dismissal of the individual defendants, Phelps is the only remaining defendant for purposes of the instant appeal. The only issues before the Supreme Court regarding Phelps were prescription issues. While the Court stated that the prescription issues for both the employment discrimination and intentional infliction of emotional distress claims could not be resolved without trial on the merits, we do not interpret the Court’s decision as precluding other issues, such as Phelps’ motion for summary judgment, from being addressed prior to trial. We find no merit in plaintiffs argument.

Plaintiffs remaining assignment of error is that the trial court erred in granting Phelps’ motion for summary judgment. He contends that genuine issues of material fact remain as to whether Phelps subjected him to racial employment discrimination by allegedly assigning files to him because of his race, retaliating against him for refusing to be assigned cases because of his race, treating him disparately because of his race, subjecting him to a racially hostile work environment, and constructively discharging him by making his work environment s,o hostile that he was forced to resign. He also contends that genuine issues of material fact remain as to whether Phelps intentionally inflicted emotional distress upon him.

Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential | flelements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31,258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary, judgment is appropriate.

During the time period at issue, former La. R.S. 28:1006 B stated as follows, in pertinent part:

B. It shall be unlawful discrimination in employment for an employer to:
(1) Intentionally fail or refuse to hire, refer, discharge, or to otherwise intentionally discriminate against or in favor of an individual with respect to compensation, terms, conditions, or privileges of employment, because of race, color, religion, sex, or national origin; or
(2) Intentionally limit, segregate, or classify an employee in a way which would deprive an individual of employment opportunities, give a favor or advantage to one individual over another, or otherwise adversely or favorably affect the status of an employee because of race, color, religion, sex, or national origin. Provided, however, that nothing contained herein shall be construed so as to create a cause of action against any employer for | ^employment practices pursuant to any affirmative action plan.

In order to prove constructive discharge, the plaintiff must prove that the employer intended to and deliberately created such intolerable working conditions that the employee was forced into involuntary resignation. Plummer v. Marriott Corp., 94-2025, p. 9 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 849. To find that a constructive discharge has occurred, the trier of fact must be satisfied that the working conditions to which the employee was subjected were so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign. Id.

In order to recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991).

In support of its motion for summary judgment, Phelps established through affidavits, depositions and other documentation the following: In 1990, shortly after being hired as an associate at Phelps, plaintiff was asked if he wanted to work on the files of one of Phelps’ major clients, the insurer of the New Orleans Aviation Board. The partners involved in this matter told plaintiff that this opportunity was based upon a specific request from this client to have minority attorneys assigned to their files. The plaintiff conveyed to the partners that he was uncomfortable being asked to work on cases because of his race, and declined thej^ offer to work on the Aviation Board files. Once the plaintiff made his feelings known on this subject, the law firm did not order plaintiff to work on those files.

Plaintiffs first evaluation while at Phelps occurred in 1991, the year after he declined to work on Aviation Board files, and that evaluation was the best one he received during his employment at the law firm. His 1992 evaluation was almost as favorable as his 1991 evaluation. His 1993 and 1994 evaluations were less favorable, and the affidavits and depositions offered in support of the motion for summary judgment established that most of the partners who offered those evaluations of plaintiff felt that he was not progressing at the level expected of an associate with his number of years of experience. Bill Aaron, a black partner, stated in his 1994 evaluation of plaintiff that he was performing below his capabilities.

According to the supporting documentation attached to Phelps’ motion, plaintiff was not subject to disparate treatment by the firm after he refused to work on the Aviation Board files. After rejecting the offer to work on those files in 1990, plaintiff was twice allowed by Phelps to seek public office while remaining employed by the firm. Plaintiff ran for a position on the New Orleans City Council in 1992 and for a position on the Orleans Parish School Board in 1993. Phelps and its partners contributed time and money to both of plaintiffs campaigns. Plaintiffs billing records show that he worked fewer billable hours in the years that he sought public office, and in 1994 when he took a month off for medical reasons. Plaintiff received his full salary during the times he ran for public office and had health problems, even though he worked fewer billable hours than ^normally expected of associates. Plaintiff received pay raises each year he worked at Phelps, and also received bonuses in 1991 and 1992. When plaintiff resigned from Phelps in 1995, he and the law firm entered into a temporary arrangement in which the firm agreed to pay plaintiff to serve as a consultant on a case on which he had worked during his employment at Phelps.

Through its supporting documentation, Phelps met its initial burden of proving that that there is an absence of factual support for one or more elements essential to plaintiffs claims. The burden then shifted to plaintiff to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial.

In opposing the motion, plaintiff offers documentation that he alleges shows that genuine issues of fact remain as to whether he was assigned to certain cases because of race. He also claims that issues of fact remain as to whether after refusing to be assigned to cases because of his race, certain Phelps partners retaliated against him by unfairly criticizing his work and withholding work assignments so that he was unable to work the amount of billable hours expected of him. He claims he was “frozen out” by firm members whose intention was to make his work environment so intolerable that he would resign.

Plaintiff cites deposition testimony from several Phelps partners to support his claim that the law firm “assigned” plaintiff jobs based on his race. Plaintiff cites the case of Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir.1999), in which a telephone marketing company that worked for various political candidates was held liable to plaintiff in that case for its practice -of assigning black employees to call black voters and assigning white employees to call white voters. The |1stelephone marketing company also segregated callers by placing the black callers in one room and the white callers in another room.

Plaintiff cites two examples of being assigned to a job because of race: the offer to work on files involving the Aviation Board, and a case involving Le Meridien Hotel in New Orleans. The deposition testimony of the Phelps partners cited by plaintiff establishes that the offer to work on the Aviation Board files was not a “job assignment,” such as that contemplated in the Ferrill case, because plaintiff was given the choice to accept or reject the offer to work on those files.

In the case involving Le Meridien Hotel (hereinafter referred to as “Meridien”), it is undisputed that the plaintiff refused to return to the trial in this case after opposing counsel allegedly made a comment about him that was racially insensitive. Plaintiff cites the deposition testimony of Penelope Cabibi, a former secretary at Phelps, who alleges that Paul Peyronnin told her in a private conversation that the law firm assigned plaintiff to the case because he is black, and that Mr. Peyronnin used a racial slur in this conversation. Mr. Peyronnin denies Ms. Cabibi’s allegations, but more importantly for summary judgment purposes, Mr. Peyronnin was still an associate at Phelps at the time of this alleged conversation. Therefore, even assuming arguendo that Mr. Peyronnin made these comments to Ms. Cabibi, he was not in a position at that time to assign jobs to plaintiff and he could not have had personal knowledge of the motivations, if any, of those who assigned cases.

Plaintiff claims that Roy Cheatwood’s deposition reveals that he was personally offended by plaintiffs position that he did not want to be assigned to files because of his race. The excerpts of Mr. Cheat-wood’s deposition offered by plaintiff reveal no such thing. Mr. Cheatwood said he was offended when plaintiff 114refused to go back to the Meridien trial after opposing counsel made a racially insensitive remark. Mr. Cheatwood’s testimony shows that his offense toward plaintiff was limited to the fact that he had left a case in the middle of a trial, and allegedly refused to work in Civil District Court. Mr. Cheat-wood said the plaintiffs refusal to work in Civil District Court troubled him because many of the cases handled by Phelps were in that court. . Nowhere in the portions of Mr. Cheatwood’s deposition offered by plaintiff does he say that he was offended by plaintiffs refusal to be assigned to cases because of his race.

Similarly, Paul Peyronnin, an associate at the time of the Meridien trial, stated that he was irritated with plaintiffs behavior during the trial, but his irritation was limited to the fact that plaintiff refused to return to the Meridien trial after opposing counsel made a racially insensitive remark about plaintiff in his presence. Mr. Pey-ronnin said that plaintiffs decision to refuse to return to the trial made him mad at the time because it meant that Mr. Pey-ronnin had to take on plaintiffs share of the work in addition to his own until the partners in the case assigned another associate to assist.

Plaintiff also cites the excerpt from Brent Barriere’s deposition describing Roy Cheatwood as being “very exercised” at plaintiff during the Meridien trial. Plaintiff suggests in his second supplemental memorandum in opposition to the motion for summary judgment that Mr. Barriere’s testimony confirms his earlier claim that Mr. Cheatwood became upset with plaintiff when he refused to continue to participate in the Meridien. trial “because he felt he was being used because of his race.” Mr. Barriere’s testimony was that Mr. Cheat-wood was upset with plaintiff because Mr. Cheatwood was depending on plaintiffs assistance in the trial and when he was ready to return to court, plaintiff was nowhere to be found. |1B There is nothing in the excerpts of Mr. Barriere’s testimony supporting plaintiffs contention that Mr. Cheatwood was offended by plaintiffs refusal to take assignments that were based on his race.

Plaintiff also offered excerpts of his own deposition and contemporaneous notes he took documenting raced-based job assignments. These items do not include factual support based on personal knowledge that plaintiff was “assigned” to cases because of race. Phelps offered documentation showing that plaintiff was free to accept or reject the offer to work on the Aviation Board cases, and Phelps has denied that plaintiff was chosen to participate in the Meridien case because of race. Plaintiff has not offered factual support based on personal knowledge showing that Phelps “assigned” plaintiff to cases based on his race. Plaintiffs deposition contains only conclusory allegations and speculation on this issue. Unfounded assertions, con-clusory allegations and subjective opinions cannot satisfy plaintiffs burden under La. C.C.P. art. 966 to produce factual support sufficient to satisfy his evidentiary burden at trial. Duet v. Martin Marietta Corporation, 98-1329 (La.App. 4 Cir. 11/10/98), 720 So.2d 1290.

We next examine plaintiffs supporting documentation to determine whether genuine issues of fact remain as to whether or not Phelps retaliated against plaintiff by adopting a strategy of denying him assignments in an attempt to force him to accept race-based assignments or to resign. _ In the deposition testimony excerpts offered by plaintiff, the Phelps partners refuted plaintiffs claims of retaliation, including the denial of work assignments, and plaintiff did not produce any factual support sufficient to satisfy his evidentiary burden at trial on this issue. Plaintiffs statements regarding the alleged retaliatory intentions of others in his deposition, contemporaneous notes and affidavit are mere conclusory allegations and are not |1fibased upon personal knowledge. Affidavits and deposition testimony submitted in connection with a motion for summary judgment must be based on personal knowledge. Butler v. Reeder, 615 So.2d 1120, 1123 (La.App. 5 Cir.1993). This Court held recently that even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the non-moving party rests merely upon concluso-ry allegations, improbable inferences, and unsupported speculation. Haney v. Delta Petroleum Co., Inc., 2001-0636, p. 5 (La.App. 4 Cir. 3/6/02), 811 So.2d 1200, 1204, writ denied, 2002-1384 (La.9/13/02), 824 So.2d 1169, citing Carter v. BRMAP, 591 So.2d 1184 (La.App. 1 Cir.1991).

Plaintiff claims that the alleged retaliation efforts of Phelps also took the form of unwarranted criticism of plaintiffs work after he refused race-based assignments. A review of plaintiffs evaluations while employed at Phelps shows that plaintiff received favorable evaluations in 1991 and 1992. His evaluations for 1993 and 1994 were less favorable, with several partners commenting that plaintiff showed a lack of initiative and independence in his work. The 1994 evaluation included many more comments indicating that plaintiffs research and writing skills needed improvement, and that plaintiff required a greater amount of supervision than that usually necessary for an associate with his number of years of experience. On January 20, 1995, plaintiff had a meeting with several partners in which he was informed that his latest evaluation reflected that his performance was not acceptable for a fourth or fifth year associate, and that the partners lacked confidence in him.

It is undisputed that the partners’ evaluations of plaintiff started off positively in his first two years at Phelps and then grew increasingly critical of his performance from 1993 until he resigned in 1995. Although plaintiff points to |17portions of the partners’ deposition testimony that refer to positive aspects of his performance as an associate, he does not offer any fact, based on personal knowledge, supporting his position that the criticism of other aspects of his performance was unwarranted. The deposition testimony of the partners cites many examples of occasions when plaintiffs performance was unsatisfactory. Again, plaintiff offered only conclusory allegations in support of his charge that he was subject to unwarranted criticism after refusing to accept assignments based on race.

Plaintiff also argues that genuine issues of fact exist as to whether he was subjected to disparate treatment because of his race. In this argument, he repeats arguments already made about being denied opportunities given to other associates, being denied job assignments and being pressured to transfer to another department (to handle Aviation Board files) because of race. He also repeats his earlier arguments about being assigned to jobs because of race and having his job performance unfairly criticized. He mentions being chosen to represent Phelps as a recruiter at a minority job fair at Southern University, but admits that a white colleague was also chosen to represent the firm at this event with him. Other than this incident, which does not create a genuine issue of material fact about disparate treatment, plaintiff relied strictly on his own conclusory allegations contained in his deposition to support this claim. As stated above, this is insufficient to satisfy his burden. Plaintiff cites excerpts of partners’ testimony in support of his claim that he complained about his alleged disparate treatment. The fact that he complained about alleged disparate treatment does not present a genuine issue of fact as to whether he was indeed treated disparately. While plaintiff argues that he was not treated as well as certain white associates, the only evidence presented of |isthis was plaintiffs own opinion about this in his deposition. He did not present any facts, based on personal knowledge, showing that he was treated differently than similarly situated non-minority employees at Phelps. See, Mayberry v. Vought Aircraft Company, 55 F.3d 1086, 1090 (5th Cir.1995).

Plaintiff next argues that he has raised a genuine issue of fact on his claim that Phelps constructively discharged him. Plaintiff argues that he has presented facts supporting his claim of a racially hostile work environment. In order to prevail in a hostile work environment claim, a plaintiff must assert and prove: 1) he belongs to a protected group; 2) he was subjected to harassment; 3) the harassment was motivated by discriminatory animus (race); (4) the harassment affected a term, condition, or privilege of employment; and 5) the employer knew or should have known of the harassment and failed to take proper remedial action. Hicks v. Central Louisiana Electric Company, Inc., 97-1232 (La.App. 1 Cir. 5/15/98), 712, So.2d 656.

In support of this claim, plaintiff refers to the contemporaneous notes he took documenting alleged incidents of racial discrimination. Plaintiff made a total of five of these notes during his four and one-half years of employment at Phelps. Two of these notes refer to his being asked to represent the Aviation Board. We have already held that plaintiff offered no support for his claim that this was a race-based assignment. In the third note, plaintiff complains that Phelps partner Danny Shaw (1) scheduled a mediation in 1991 on the Martin Luther King federal holiday; and (2) allegedly said that former President George Bush should have selected General Colin Powell as his running mate in 1992 because more black people might have voted for President Bush in that election. Regarding the mediation scheduled for Martin Luther King Day, there is no allegation by plaintiff |19that this date was not a regular workday for all employees of Phelps. The other comment allegedly made by Mr. Shaw could not support a claim of a racially hostile work environment. A fourth note claims that plaintiff spoke to Roy Cheatwood about not getting enough work, and alleges that Mr. Cheatwood responded that plaintiff should talk to Bill Howard. Bill Howard handled Aviation Board cases. Mr. Cheat-wood denies making this comment, but even assuming arguendo that he did, this conversation would not support a claim of a racially hostile environment. The fifth note was taken after plaintiffs final evaluation in January 1995. Plaintiff claims that Mr. Cheatwood stated at a meeting with plaintiff and three partners that the evaluation forms also contained some positive comments but he would not discuss them at the meeting. This statement does not support plaintiffs claim of a racially hostile environment. None of the documentation presented by plaintiff raises a genuine issue of material fact supporting his claim that Phelps subjected him to harassment motivated by discriminatory animus.

Because he has offered no other documentation to support his claim of constructive discharge other than his own concluso-ry allegations, plaintiff has not satisfied his burden of showing that a genuine issue of fact exists as to whether the working conditions created by his employer were so intolerable that he was forced to resign. See, Plummer v. Marriott Corp., supra. Plaintiff argues that this Court and the Louisiana Supreme Court have already held that plaintiff was constructively discharged. Our review of the decisions in King v. Phelps Dunbar L.L.P., 98-1805 (La.6/4/99), 743 So.2d 181, and King v. Dunbar, 97-2519 (La.App. 4 Cir. 6/3/98), 716 So.2d 104, reveals no such holding. Those cases only addressed the constructive discharge issue to determine, for prescription purposes,J^when plaintiff had the notice necessary to pursue a constructive discharge claim against his employer.

Finally, plaintiff argues that genuine issues of fact exist on the issue of whether Phelps subjected him to intentional infliction of emotional distress. Plaintiff has not presented documentation, based upon personal knowledge, supporting a claim for intentional infliction of emotional distress. Although plaintiff alleges that he suffered severe emotional distress, he has not produced factual support to establish that he could carry his burden at trial of proving that Phelps’ conduct was extreme and outrageous and that Phelps desired to inflict severe emotional distress on him or knew that severe emotional distress would be certain or substantially certain to result from its conduct.

Phelps met its initial burden of proving that there is an absence of factual support for one or more elements essential to plaintiffs claims of constructive discharge because of racial discrimination and intentional infliction of emotional distress. The burden then shifted to plaintiff to produce factual support sufficient to establish that he would be able to satisfy his evidentiary burden at trial on these claims. He failed to do so. Therefore, summary judgment in favor of Phelps was appropriate.

For these reasons, the trial court judgment is affirmed.

AFFIRMED.

JONES, J., dissents with reasons.

1JONES, J.,

Dissents With Reasons.

I respectfully dissent and depart from the majority in finding that there was no error by the district court in granting summary judgment in favor of the defendants, Phelps Dunbar, L.L.P. In King v. Phelps Dunbar L.L.P., 98-1805 (La.6/4/99), 748 So.2d 181, the Supreme Court vacated in part and remanded this case for trial on the merits. To date, Mr. King has not been afforded his day in court as ruled by the Supreme Court.

I am' of the opinion that the lower courts must follow all Louisiana Supreme Court judgments. Therefore, the district court was in error for granting the summary judgment, and the majority is in error in affirming the district court. Mr. King has not been afforded the opportunity to present his case in a full trial on the merits. Therefore, I must respectfully dissent.

      . The Court denied rehearing, but did not issue reasons.

      . La. R.S. 23:1006 was subsequently repealed by Acts 1997, No. 1409, effective August 1, 1997. The rules regarding the prohibition against employment discrimination are currently set forth in La. R.S. 23:332.

      . It is undisputed that plaintiff represented the Aviation Board after he left his employment at Phelps and opened his own law office.


author: 1JAMES F. McKAY, III, Judge.

text:
    Jose BONILLA v. COMMODORE CRUISE LINES LIMITED and ABC Insurance Company.
    No. 2002-CA-2182.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 2003.

      Timothy J. Falcon, Jeremiah A. Sprague, Falcon Law Firm, Marrero, LA, for PlaintiffiAppellant.
    Thomas J. Wagner, Thomas P. Henican, Wagner & Bagot, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD).
   1JAMES F. McKAY, III, Judge.

The plaintiff, Jose Bonilla, appeals the trial court’s granting of the defendant’s, Commodore Cruise Lines Limited’s (Commodore), motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Bonilla, a Honduran national, was allegedly injured on October 17, 1994, while he was in the employ of Commodore. On July 15, 1996, Mr. Bonilla filed suit against Commodore in Civil District Court for Orleans Parish, alleging that his injury occurred on the S.S.ENCHANTED SEAS while it was docked in New Orleans. Commodore was not served with the lawsuit until January of 1997; however, Commodore went out of business in July of 1995 and its assets were sold to New Commodore Cruise Lines Ltd. (New Commodore).

Commodore filed an exception of lack of in personam jurisdiction and further moved for a dismissal or stay of the suit on the grounds of the Panama forum selection clause included in its standard employment contract. Mr. Bonilla defeated Commodore’s jurisdictional exception and motion for dismissal with |gmultiple representations regarding his service and various activities in Louisiana which he claims led to his injury.

In actuality, at the time of Mr. Bonilla’s alleged injury, he was working aboard the S.S. ENCHANTED ISLE, not the S.S. ENCHANTED SEAS, and this vessel was not at port in New Orleans, but was dry-docked in Gdansk, Poland. These facts were not learned by Commodore until Mr. Bonilla appeared for a deposition in New Orleans. Upon learning these facts, Commodore moved for summary judgment and the imposition of sanctions. The trial court granted Commodore’s motion for summary judgment but declined to impose sanctions. Both Mr. Bonilla and Commodore appeal the trial court’s judgment.

DISCUSSION

On appeal, Mr. Bonilla raises the following assignments of error: 1) the trial court erred in granting Commodore’s motion for summary judgment based on lack of in personam jurisdiction; and 2) the trial court erred in granting Commodore’s motion for summary judgment dismissing Mr. Bonilla’s claims based on the forum selection clause contained in the employment contract. Commodore contends that the trial court erred in denying its motion for sanctions.

Under article 966 of the Louisiana Code of Civil Procedure, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact. La.Code Civ. Pro. Art. 966 B; Gaspard v. Orleans Parish School Board, 96-1754 (La.App. 4 Cir 2/5/97), 688 So.2d 1298, 1301. A Rfact is material for purposes of a motion for summary judgment if it potentially ensures or precludes recovery, affects the litigant’s ultimate success, or determines the outcome of the case. Wright v. Dollar General Corp., 602 So.2d 772, 774 (La.App. 2 Cir.1992).

If supporting documents presented by the mover are sufficient to resolve all genuine issues of material fact, the burden shifts to the opposing party to present evidence beyond the allegations and denials contained in the pleadings, demonstrating that material facts are still at issue. Id. at 774. Once the burden of proof has shifted, the non-moving party must show, through affidavits, pleadings, deposition testimony, and/or answers to interrogatories and admissions, that a genuine issue exists. If the non-moving party cannot so respond, the motion for summary judgment must be granted. Nathans v. Vuci, 448 So.2d 690, 696 (La.App. 1 Cir.1983).

In the instant case, the trial court found that it lacked personal jurisdiction over Commodore because Mr. Bon-illa failed to prove that he ever sailed to New Orleans while he worked for Commodore and Commodore had no contacts with Louisiana for eighteen months prior to being served with Mr. Bonilla’s petition. While these factual findings are subject to the manifest error standard of review, jurisdiction is a question of law subject to de novo review. Sunrise Shipping Agency, Inc. v. Universal Maritime Services, Ltd., 96-2703 (La.App. 4 Cir. 10/3/97), 700 So.2d 1135, 1137. There are two types of jurisdiction: specific jurisdiction and general jurisdiction. Specific jurisdiction applies when a cause of |4action arises out of the defendant’s contacts with the state while general jurisdiction applies when the cause of action does not arise out of the defendant’s contacts with the state. Id. at 1138. Considering that the cause of action at the heart of this case arose in Gdansk, Poland and not New Orleans, Louisiana, it is clear that a Louisiana court has no specific jurisdiction over this case.

A court has general jurisdiction over a defendant if the defendant has “continuous and systematic” contacts with the forum state such that maintenance of the suit does not offend the traditional notions of fair play and substantial justice, de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 105 (La.1991). The court must first examine the defendant’s contacts and then, if sufficient, the court must examine the fairness factor. Id. at 109. The burden is on the plaintiff to show that the defendant has the necessary minimum contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Generally, personal jurisdiction is determined as of the time of filing. Sunrise at 1138.

In the instant case, suit was filed against Commodore in July of 1996 and Commodore was served in January of 1997. However, Commodore ceased its operations in Louisiana when it sold its cruise business in July of 1995. Mr. Bonil-la presented no evidence that Commodore had continuous or systematic contacts with Louisiana at the time of filing, the time of service or for eighteen months prior to the filing of the petition. Furthermore, even if pre-filing contacts are considered, Mr. Bonilla has still failed to show that Commodore’s contacts | Kwere continuous, systematic or substantial. Mr. Bonilla has not presented any evidence, except an affidavit setting forth that Commodore “regularly sailed to New Orleans,” showing Commodore’s purported contacts before July of 1996. Accordingly, the trial court was correct in determining that the defendant’s contacts were not continuous and systematic. In any event, even if the defendant’s contacts had been systematic and continuous, it would offend traditional notions of fair play and substantial justice to maintain in a Louisiana court the suit of a Honduran national allegedly injured in Poland.

Mr. Bonilla contends that the trial court erred in determining that the forum selection clause was enforceable because La. R.S. 23:921(A)(2) states that all forum selection clauses are null and void except where the clause is “expressly, knowingly, and voluntarily agreed to and ratified by the employee after the occurrence of the incident which is the subject of the civil or administrative action.” Mr. Bonilla raises this argument for the first time on appeal. Accordingly, this argument is waived. See James v. Formosa Plastics Corp., 95-1794 (La.App. 1 Cir. 4/4/96), 672 So.2d 319; writ denied, 96-1091 (La.11/22/96), 683 So.2d 285. See also Uniform Rules, Courts of Appeal, Rule 1-3.

Commodore contends that the trial court erred when it did not impose sanctions on the plaintiff under Article 863 of the Louisiana Code of Civil Procedure. Generally speaking a trial court has great discretion in deciding | ^whether to impose sanctions. Furthermore, a trial court’s determination of whether to impose sanctions will not be reversed unless it is manifestly erroneous or clearly wrong. Harris v. Gaylord Bag Co., 26,335 (La.App. 2 Cir. 12/7/94), 647 So.2d 542. Based on the record before this Court, we find nothing manifestly erroneous or clearly wrong with the trial court’s decision not to impose sanctions on the plaintiff in this case.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s granting of summary judgment as well as its denial of sanctions.

AFFIRMED.

      . The Louisiana Supreme Court has held that forum selection clauses in seaman’s employment contracts are presumed to be enforceable. Lejano v. K.S. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158. Forum selection clauses must be enforced "unless enforcement is shown to be unreasonable under the circumstances.” Id. at 166 (citing The

        Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).