text:
    Marsha A. WILLIS v. EAN HOLDINGS d/b/a Enterprise Rent a Car, Elco Insurance Group, Inc., Toyota Motor Corporation and Troy David Thibodeaux
    NO. 2018 CA 0582
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2018
    Marsha A. Willis, Baton Rouge, LA, Plaintiff-Appellant, In Proper Person
    A. Jacob Culotta, Jr., David P. Salley, New Orleans, LA, Attorney for Defendants-Appellees, EAN Holdings, LLC and ELCO, Administrative Services, Inc.
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Plaintiff-appellant, Ms. Marsha Willis, appeals the trial court's grant of summary judgment in favor of defendants-appellees, EAN Holdings, LLC (EAN) and ELCO Administrative Services (ELCO), and dismissal of her claims with prejudice.

FACTS AND PROCEDURAL HISTORY

The facts and procedural history of this case are set forth in the opinions rendered by this court in two prior appeals. See Willis v. EAN Holdings, 2015-1538 (La. App. 1st Cir. 4/12/17), 218 So.3d 177, writ denied, 2017-789 (La. 9/22/17), 226 So.3d 438, and Willis v. EAN Holdings, 2015-1539 (La. App. 1st Cir. 4/12/17), 218 So.3d 1063, writ denied, 2017-0790 (La. 9/22/17), 228 So.3d 744. In sum, Ms. Willis's mother entered into a rental agreement with EAN for the use of a Toyota Corolla. While driving the Corolla the next day, Ms. Willis was involved in an accident with Mr. Troy Thibodeaux, after which Mr. Thibodeaux filed suit. After the accident, Rental Insurance Services, Inc. (RIS), without the permission of Ms. Willis, negotiated a settlement agreement with Mr. Thibodeaux whereby Mr. Thibodeaux dismissed his claims against all parties, including Ms. Willis, in exchange for payment made by RIS. (Thibodeaux litigation). Thereafter, Ms. Willis sought discovery responses from RIS and Mr. Thibodeaux; but, because of the agreement settling all the claims of Mr. Thibodeaux, the trial court signed an order suspending discovery. The trial court also awarded sanctions in favor of RIS related to an answer filed by Ms. Willis under La. Code Civ. P. art. 863. Ms. Willis appealed the trial court's judgments awarding sanctions and suspending discovery. The judgments were affirmed by this court. See Thibodeaux v. Rental Ins. Services, Inc., 2013-1947 (La. App. 1st Cir. 4/24/15), 2015 WL 1882456 (unpublished), writ denied, 2015-1213 (La. 9/25/15), 178 So.3d 567.

The litigation forming the basis of this appeal by Ms. Willis began on August 6, 2012, when Ms. Willis, an attorney representing herself, filed a Petition for Damages naming EAN, ELCO, Toyota Motor Corporation, and Mr. Thibodeaux as defendants. Ms. Willis then filed an amended petition adding RIS and Empire Fire and Marine Insurance Company (Empire) as defendants. In her original petition, she contended that EAN failed to properly maintain or repair the Corolla, specifically the brakes, thereby causing the accident.

After Ms. Willis filed the original petition and first supplemental and amending petition, RIS and Empire filed exceptions of vagueness. Thereafter, Ms. Willis again amended her petition on November 26, 2014, and set forth eleven different causes of action against the defendants. Ms. Willis's complaints primarily arise out of her contention that RIS settled the Thibodeaux litigation without her permission, prevented her from being able to prove that the accident was not her fault, and placed her in a position in which she could potentially have to pay the debt RIS paid to Mr. Thibodaux. Ms. Willis's causes of action were mainly asserted against RIS and Empire and included state law claims of fraud and breach of contract, and federal law claims under the Fourteenth Amendment, as well as civil rights violations under 42 U.S.C.A. § 1985 and 42 U.S.C. A. § 983, and equal rights violations under 42 U.S.C.A. § 1981. The only cause of action against EAN and ELCO were as follows:

9. ELCO committed acts of fraud, tortious conduct and failure to negotiate in good faith in violation of Louisiana tort law, Louisiana contract law, and laws governing insurers and brokers in threatening me with economic retaliation for explaining and reporting the brake failure of the rental vehicle; and when it failed to properly inspect the [rental] following the accident.
10. [EAN] is liable in solido in regards to the foregoing acts and omissions of its agents and insurers, RIS, ELCO, and Empire. Further, [EAN] is liable for failing to properly maintain and/or repair the rental vehicle, specifically in that the brakes of the vehicle failed and thereby caused the accident, and also in regards to the airbag that was apparently defective.

Subsequently, RIS and Empire filed motions for summary judgment that were granted by the trial court, finding that no genuine issues of material fact existed regarding any of the causes of action that Ms. Willis had set forth in her petition. This court affirmed the trial court's grant of summary judgment also finding no evidence in the record to support any causes of action raised by Ms. Willis. While this court declined to award attorney fees for frivolous appeal, one judge disagreed with that portion of the decision and would have awarded damages for frivolous appeal. Additionally, this court in a related appeal found that the trial court's award of attorney fees in favor of Empire as the prevailing party under 42 U.S.C.A. §§ 1981 and 1985 and under La. Code Civ. P. art. 863(D) was abusively low. In finding the award was abusively low, this court pointed out that "[a] thorough review of the record revealed that Ms. Willis, a licensed attorney, presented a case against Empire with no basis in law or fact, filed numerous unfounded pleadings, and caused unnecessary litigation. As a result, Empire was forced to expend funds in an effort to defend Ms. Willis['s] frivolous claims." Willis v. EAN Holdings, 2016-0473 (La. App. 1st Cir. 4/12/17), 218 So.3d 661, 665, writ denied, 2017-0791 (La. 9/22/17), 228 So.3d 740.

Ms. Willis filed writs with the supreme court, which were denied on September 22, 2017. Justice Crichton concurred and added reasons pointing out that he found it troubling that Ms. Willis failed to present even a scintilla of evidence to support her allegations. See Willis v. EAN Holdings, 2015-1538 (La. App. 1st Cir. 4/12/17), 218 So.3d 177, writ denied, 2017-789 (La. 9/22/17), 226 So.3d 438.

Thereafter, on October 10, 2017, the remaining defendants, EAN and ELCO, filed a motion for summary judgment contending that there are no genuine issues of material fact in dispute. Specifically, EAN and ELCO contended that they were entitled to dismissal of all claims regarding Ms. Willis's allegation that they may be liable in solido with regard to any acts and omissions of Empire or RIS. They also maintained that Ms. Willis has produced no evidence that EAN failed to properly maintain or repair the Corolla or that ELCO committed acts of fraud or failed to negotiate in good faith. The trial court granted EAN and ELCO's motion for summary judgment and in so ruling stated: "The first circuit has ruled. The supreme court has ruled. Justice Crichton has indicated how he felt about the way you've handled things. I have told you over and over again ... that you cannot come in here with these ridiculous arguments and with no evidence and expect this court to give you any relief." A judgment was signed on January 12, 2018, in conformity with the trial court's oral reasons. It is from this judgment that Ms. Willis appeals.

LAW AND ANALYSIS

When reviewing summary judgments, appellate courts conduct a de novo review of the evidence, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1st Cir. 8/11/08), 993 So.2d 725, 729-30. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art. 966(A)(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2).

The burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966(D)(1).

In favor of their motion for summary judgment, EAN and ELCO presented an affidavit of James Richey, a senior liability claims adjuster for ELCO, who was assigned to handle the liability claims of Ms. Willis. In his affidavit, Mr. Richey outlined his numerous attempts to contact Ms. Willis in order for her to attend the inspection of the Corolla or to otherwise obtain an independent investigation. According to Mr. Richey, the vehicle inspection eventually went forward on October 7, 2011, without Ms. Willis, although Ms. Willis was aware of the date. Additionally, Ms. Willis was given an extra seven days to conduct an inspection. DK & Associates, L.L.C., conducted the inspection of the Corolla and determined "that the brake pad had very little wear and the fluid level [was] good" and that the "brakes [were] in good shape."

While EAN and ELCO correctly point out that Ms. Willis did not come forward with evidence of how EAN failed to properly maintain and/or repair the rental vehicle, Ms. Willis does not even raise that finding as an assignment of error. Instead, her brief is wholly repetitive of the issues raised in her prior appeal as to parties that have already been dismissed. In fact, in three of her assignments of error Ms. Willis is again addressing actions of RIS and Empire, and in one she is addressing sanctions that were awarded and affirmed in the Thibodeaux litigation. In her reply brief, Ms. Willis acknowledged that this lawsuit was not about "fault or issues of cause in fact of the August 4, 2011, accident, but what the Defendant[s]-Appellees did in response to the accident." Ms. Willis is primarily attempting to hold EAN and ELCO responsible for the actions of RIS, a party that was already dismissed with prejudice.

After thorough review of the assignments of error raised by Ms. Willis, it is blatantly clear she is attempting to re-urge issues that were previously fully decided by this court. The record is again devoid of any evidence to prove the causes of action asserted by Ms. Willis against EAN and ELCO. Therefore, the trial court judgment granting EAN and ELCO's motion for summary judgment is affirmed.

EAN'S ANSWER TO THE APPEAL

EAN and ELCO answered Ms. Willis's appeal herein seeking costs and attorney fees for having to defend the appeal, which they assert is frivolous. Although an award for frivolous appeal is penal in nature and must be strictly construed, we find this case is ripe for the award of damages for frivolous appeal. See State Farm Mutual Automobile Ins. Co. v. Callahan, 571 So.2d 852 (La. App. 3d Cir. 1990), writ denied, 576 So.2d 51 (La. 1991) ; La. Code Civ. P. art. 2164. An award for damages for frivolous appeal is warranted "when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant's counsel does not seriously believe in the position he advocates." Id. at 854.

Although we declined to award damages in the prior appeal, at this point, we simply cannot find that Ms. Willis is sincere in the view of the law she advocates as she is making the same arguments that have already been rejected by the district court, this court, and the supreme court. Additionally, Ms. Willis has been advised repeatedly at all levels of this case that there is no merit to her claims. Therefore, we award damages for frivolous appeal in favor of EAN and ELCO in the amount of $1,500.00.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of EAN and ELCO is affirmed. Further, judgment is hereby rendered in favor of defendant-appellees EAN and ELCO, and against plaintiff-appellant, Marsha Willis, in the amount of $1,500.00 as damages for her frivolous appeal. Further, all costs of this appeal are assessed against plaintiff-appellant, Ms. Marsha Willis.

AFFIRMED AND RENDERED.

      EAN and ELCO also filed a motion to remand the matter to the trial court to traverse the pauper status of Ms. Willis. On August 28, 2018, this court granted the motion and remanded the matter to the trial court for the limited purposes of allowing EAN and ELCO the opportunity to traverse Ms. Willis's pauper status. After considering this court's remand order, the memoranda and exhibits filed by the parties, and arguments from counsel, the trial court denied EAN and ELCO's motion to traverse Ms. Willis's pauper status and allowed Ms. Willis to continue to prosecute or defend the litigation in accordance with La. Code Civ. P. art. 5181, without paying costs in advance or as they accrue or furnishing security.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    Betty Sue DELCAMBRE, Joseph Delcambre v. Tony MANCUSO, in His Capacity as the Sheriff of Calcasieu Parish, et al.
    18-833
    Court of Appeal of Louisiana, Third Circuit.
    April 10, 2019 Rehearing Denied May 29, 2019
    Adam P. Johnson, The Johnson Firm, Post Office Box 849, Lake Charles, LA 70601, (337) 433-1414, COUNSEL FOR PLAINTIFFS/APPELLANTS: Betty Sue Delcambre, Joseph Delcambre
    Shayna L. Sonnier, Hunter, Hunter & Sonnier LLC, 1807 Lake Street, Lake Charles, LA 70601, (337) 436-1600, COUNSEL FOR PLAINTIFFS/APPELLANTS: Betty Sue Delcambre, Joseph Delcambre
    Robert C. McCorquodale, In-House Counsel, Calcasieu Parish Sheriff's Office, 1011 Lakeshore Drive, Suite 203, Lake Charles, LA 70601, (337) 491-3622, COUNSEL FOR DEFENDANTS/APPELLEES: Tony Mancuso, Sheriff of Calcasieu Parish, Leslie Blanchard, John Melton
    Court composed of John D. Saunders, Van H. Kyzar, and Candyce G. Perret, Judges.
   PERRET, Judge.

This matter involves Betty Sue Delcambre's and Joseph Delcambre's ("the Delcambres") claims for damages against Tony Mancuso, in his official capacity as Calcasieu Parish Sheriff, Leslie Blanchard, and John Melton, both individually, and in their official capacities as deputies with the Calcasieu Parish Sheriff's Office ("CPSO"), (collectively referred to as "Defendants"). The Delcambres appeal the trial court's grant of partial summary judgment in favor of Defendants, which dismissed the Delcambres' claims associated with an intentional tort, including their claims of abuse of process and intentional infliction of emotional distress. On appeal, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL BACKGROUND:

In 2011, Eric Sheeley ("Mr. Sheeley"), Mrs. Delcambre's previous employer at Surfaces Design Gallery, discovered information leading him to believe that Mrs. Delcambre misappropriated funds from his business. He thereafter instituted a civil suit. In 2015, Mr. Sheeley learned of additional information regarding the theft and filed a criminal complaint alleging that Mrs. Delcambre misappropriated the funds. The complaint was assigned to John Melton ("Det. Melton") who was a detective in the property and financial crimes division. After completing his investigation, Det. Melton submitted the case to the District Attorney's office. The District Attorney's office instructed Det. Melton to obtain a warrant. Det. Melton presented an Affidavit for Arrest Warrant and an Arrest Warrant to Judge Canaday, which were signed on April 20, 2016.

On April 22, 2016, at approximately 8:29 a.m., Det. Melton emailed the arrest warrant to Leslie Blanchard ("Lt. Blanchard"), who at the time was a lieutenant supervising detectives in the violent crimes division. Lt. Blanchard then forwarded the arrest warrant to Detective Travis Lavergne ("Det. Lavergne") at 8:46 a.m. Det. Lavergne allegedly spotted Mrs. Delcambre around 8:50 a.m., and conducted a plate inquiry at 8:51 a.m. At 8:55 a.m., Deputy Aaron Shelton stopped Mrs. Delcambre's vehicle. At 9:10 a.m. Mrs. Delcambre was arrested.

Mrs. Delcambre was booked in the Calcasieu Parish Jail that morning. A CPSO Press Release form was filled out by Det. Melton and provided to his supervisor, Lieutenant Rick Burrell ("Lt. Burrell"), and Kim Myers, at 10:59 a.m. The press release was provided to the media and Mrs. Delcambre's arrest and picture were aired on the local news. Mrs. Delcambre's charges were rejected in August 2016, by the District Attorney's office after it was determined that the charges had prescribed.

On April 24, 2017, the Delcambres filed suit against Defendants alleging that Mrs. Delcambre's arrest was part of a plan concocted by Lt. Blanchard to seek revenge on Mrs. Delcambre for denying his son access to the pre-school at St. Luke-Simpson UMC Childcare Center, where Mrs. Delcambre was the Executive Director in 2015. In addition to allegations of negligence, the Delcambres alleged that Lt. Blanchard and Det. Melton conspired to coordinate Mrs. Delcambre's arrest and the issuance of the press release in order to intentionally inflict emotional distress upon Mrs. Delcambre. Further, their petition alleges that Lt. Blanchard and Det. Melton "conspired with one another for purposes of abusing the rights and abusing [the] process against" Mrs. Delcambre "to exact retribution" and to "publicly humiliate" her.

On October 17, 2017, Defendants filed a Motion for Partial Summary Judgment, requesting that the Delcambres' claims with respect to intentional torts be dismissed and stricken from the petition. In support of their motion, Defendants attached affidavits from Mr. Sheeley, Lt. Burrell, Lt. Blanchard, and Det. Melton. Defendants also submitted the Offense Report Checklist; CPSO Offense Report Receipt; an April 13, 2016 DA Review accepting the case and instructing that a warrant be obtained; the Affidavit for Arrest Warrant; Arrest Warrant; Bail Order; CPSO Press Release Form; a second DA Review dated August 11, 2016, identifying the charges as prescribed; and the Delcambres' discovery responses admitting that they have no documents evidencing that Defendants had actual, prior knowledge that the charges had prescribed.

In opposition, Plaintiffs submitted several discovery responses from Defendants, the email chain of the Arrest Warrant, a letter from the Blanchards to St. Luke-Simpson United Methodist Church asserting that they would be pursuing a claim for personal injuries for the events surrounding their son's dismissal from daycare, a response letter from the church stating it knows of no damages or embezzlement suffered by anyone, and the Detail Call for Service Report from the CPSO.

In his affidavit, Mr. Sheeley confirmed that Lt. Blanchard played no role in his decision to file charges against Mrs. Delcambre and that it was Bill Hamber ("Mr. Hamber") who encouraged him to file charges. Although Lt. Blanchard does admit that Mr. Hamber told him to discuss potential charges with Mr. Sheeley, Mr. Sheeley does not recall such a meeting and confirms that Lt. Blanchard was not the reason he decided to press charges.

Lt. Burrell attested that Lt. Blanchard was not in Det. Melton's chain of command, that Det. Melton completed his investigation and obtained the warrant and press release all according to the CPSO's procedure, and that he is confident that Lt. Blanchard played no role in supervising the investigation.

Lt. Blanchard acknowledged the daycare occurrence with Mrs. Delcambre in his affidavit, explaining that he and his wife did make complaints to the church daycare. He further explained that when he learned charges were filed against Mrs. Delcambre by Mr. Sheeley, he notified Det. Melton that there may be additional charges against Mrs. Delcambre filed by the church/daycare. Lt. Blanchard denied participating in Det. Melton's investigation. Once the warrant was issued, Det. Melton emailed the warrant to Lt. Blanchard. Lt. Blanchard attests that he was not aware that the charges had prescribed. He does admit in discovery responses that he was disciplined for his involvement in the execution of the warrant, however the reason for the disciplinary measures is not further explained.

Lastly, Det. Melton denied coordinating with Lt. Blanchard and denied that Lt. Blanchard participated in his investigation. Det. Melton confirmed that Lt. Blanchard only notified him that an additional charge against Mrs. Delcambre may be forthcoming. Det. Melton explained that, because Lt. Blanchard had mentioned another possible victim, when the warrant came through, Det. Melton sent Lt. Blanchard a copy. Det. Melton completed the press release according to CPSO procedure.

In support of the Delcambre's case, Det. Melton's discovery responses indicate that it was "not really" normal for Det. Melton to send a homicide detective arrest warrants dealing with theft. Additionally, Lt. Blanchard explains that he was sent the arrest warrant because he told Det. Melton, on a prior occasion, to send the warrant to him because Mrs. Delcambre lived outside the parish and he could assist in facilitating the arrest. The morning of Mrs. Delcambre's arrest, Lt. Blanchard also admitted to talking to Det. Lavergne at least twice, and that he sent Det. Lavergne the warrant to facilitate Mrs. Delcambre's arrest.

Defendants submitted a reply brief, attaching two exhibits: an affidavit of Pastor Frank Harris, III, of the church, and a letter from the daycare signed by Mrs. Delcambre dismissing the Blanchards' son from the school and notifying them of a refund.

At the partial summary judgment hearing, wherein all exhibits were admitted into evidence over the objections of the Delcambres, the trial court granted Defendants' partial summary judgment. The trial court found that the Delcambres failed to carry their burden in proving intentional infliction of emotional distress and referred to the high burden set forth in White v. Monsanto Co. , 585 So.2d 1205, 1209 (La.1991). Additionally, the court found that Mr. Sheeley had a valid complaint against Mrs. Delcambre and, regardless of Lt. Blanchard's involvement in facilitating the arrest, Det. Melton completed his investigation and obtained a warrant after the District Attorney's office reviewed the case and instructed him to do so. Therefore, the trial court found no abuse of process.

The Delcambres appealed the trial court's ruling and this court dismissed the appeal without prejudice on July 18, 2018, under docket number 18-391, for failing to appeal a final judgment. Defendants then filed a Motion and Order to Designate Partial Summary Judgment as Final Appealable Judgment, which was signed. This appeal follows.

On appeal, the Delcambres assert two assignments of error: (1) that the trial court erred in granting Defendants' Motion for Partial Summary Judgment regarding their abuse of process claim, and (2) that the trial court erred in admitting into evidence the two exhibits attached to Defendants' reply brief.

STANDARD OF REVIEW:

On appeal, an appellate court reviews a trial court's judgment on a motion for summary judgment de novo, "using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate." Gray v. Am. Nat. Prop. & Cas. Co. , 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer , 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638 ). The motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and 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.Code Civ.P. art. 966(B).

Louisiana Code of Civil Procedure Article 966(D)(1) sets forth the burden of proof:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Additionally, this court has explained:

A genuine issue of material fact exists "if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue." In determining whether a material factual dispute exists, a court should consider all of the record evidence but must refrain from determining the merits, making credibility determinations, and evaluating testimony. All doubts are resolved in favor of the non-moving party.

Walker v. Manitowoc Co., Inc. , 17-1014, p. 5 (La.App. 3 Cir. 10/10/18), 259 So.3d 480, 484 (citations omitted).

DISCUSSION:

Reply Exhibits in Support of Summary Judgment:

Louisiana Code of Civil Procedure Article 966(B)(3) states: "No additional documents may be filed with the reply memorandum." See also Baez v. Hosp. Serv. Dist. No. 3 of Allen Par. , 16-951 (La.App. 3 Cir. 4/5/17), 216 So.3d 98 ;

Tate v. Kristina's Transp., LLC , 18-955 (La.App. 1 Cir. 12/21/18) (unpublished opinion). Clearly, the exhibits attached to Defendants' reply brief were not permitted. Therefore, it was error for the trial court to admit the affidavit of Pastor Frank Harris, III, and the letter from the daycare dismissing the Blanchards' son from the school and notifying them of a refund. We, therefore, reverse that ruling and will not consider those documents in our de novo review.

Abuse of Process:

Louisiana has recognized abuse of process as a compensable tort under La.Civ.Code art. 2315. Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors , 07-610 (La.App. 3 Cir. 3/4/09), 4 So.3d 1002. The elements of an abuse of process cause of action are: "(1) the existence of an ulterior purpose; and (2) a willful act in the use of the process not in the regular prosecution of the proceeding." Id. at 1009. The second circuit has stated that "[u]nder this cause of action plaintiffs must allege irregularity in the process itself[.]" Mini-Togs, Inc. v. Young , 354 So.2d 1389, 1391 (La.App. 2 Cir. 1978).

More specifically, "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.' " Hebert , 4 So.3d at 1009 (quoting , Law of Torts, Volume 1, § 4.9 at p. 330, Harper and James). Additionally, the fourth circuit explained, "Abuse of process involves the misuse of a process already legally issued whereby a party attempts to obtain a result not proper under the law. At issue in such actions is the intent to use a legal process for an improper reason[.]" Goldstein v. Serio , 496 So.2d 412, 415 (La.App. 4 Cir. 1986), writ denied , 501 So.2d 209 (La.1987) and 501 So.2d 208 (La.1987) (citations omitted). Therefore, if the process is "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." Id. But, "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.

In Hebert , 4 So.3d 1002, this court initially found that the plaintiff's petition stated a cause of action for abuse of process because the petition set forth an ulterior motive for instituting a legal process. Mr. Hebert was hired by an employee to review the work of Mr. Arceneaux, who was providing the employee's vocational rehabilitation services. Mr. Hebert found Mr. Arceneaux's work to be below acceptable standards and notified the employee of his findings. Mr. Arceneaux filed a complaint against Mr. Hebert with the Louisiana Licensed Professional Vocational Rehabilitation Counselors Board of Examiners, which found that Mr. Hebert violated an ethics rule and reprimanded Mr. Hebert. Mr. Hebert filed a petition asserting, among other things, that Mr. Arceneaux and the Board "conspired through an abuse of process to obtain ethical action by way of an ethical complaint." Id. at 1005.

However, Mr. Hebert's abuse of process claim was later dismissed on summary judgment. Hebert v. La. Licensed Prof'l Vocational Rehab. Counselors Bd. of Examiners , 14-102, 2014 WL 5633681 (La.App. 3 Cir. 11/5/14) (unpublished opinion), writ denied , 14-2555 (La. 2/27/15), 159 So.3d 1070. On appeal, this court affirmed and noted that Mr. Arceneaux provided exhibits proving he filed an ethical complaint with the Board and testified at the hearing. Mr. Hebert then "failed to carry his burden to provide any evidentiary support for his claim that the administrative process had been improperly manipulated by Mr. Arceneaux[,]" nor did he submit evidence to support the "ulterior purpose element." Id. at p. 7. Likewise, the Board proved through exhibits that it followed each procedural step required when an ethical complaint is filed in order to abide by its statutory obligation to adopt and enforce an ethics code. Mr. Hebert then failed to submit any evidence that "there was an aberration in the proceedings" to support his claim for abuse of process. Id. Therefore, summary judgment was proper.

In contrast, a successful abuse of process claim is demonstrated in Eicke v. Eicke , 517 So.2d 1067 (La.App. 3 Cir. 10/7/87), where a mother waited to institute visitation termination proceedings in order to prevent her children's Christmas visitation with their paternal grandparents. In Eicke , the grandparents maintained a court-ordered visitation with the children. Several days before Christmas, the mother filed a rule to terminate the grandparents' visitation. The grandparents were not notified of the proceedings until the grandfather flew from Texas to Louisiana and appeared at the mother's residence to collect the children for their visitation. The grandparents answered the petition and asserted, among other things, damages for the mother's conduct. The trial court found that "the [mother] improperly misled the trial court into issuing an ex parte order through the use of verified pleadings which were not supported by the evidence." Id. at 1072. The basis for the mother's petition to terminate visitation was that the grandparents allowed the children in July to stay the night with their biological father, who had previously abducted them. The mother learned of this information in July, however, waited until one week before Christmas to have the ex parte order issued, despite having a conversation with the grandfather in November regarding the Christmas visitation arrangement. Therefore, the court found, and the third circuit agreed, that the mother's institution of the proceedings " 'was obviously designed to obstruct visitation at Christmas, not to seek resolution of the issue.' " Id.

In this case, the Delcambres argue that Lt. Blanchard wanted retribution because Mrs. Delcambre dismissed his child from daycare, and that Det. Melton conspired with Lt. Blanchard to achieve that end. Additionally, the Delcambres argue that the issue of intent cannot be decided on summary judgment. However, the Delcambres must show they will be able to prove both elements of an abuse of process claim. We find that the Delcambres cannot do so.

"While the existence of an ulterior motive may, perhaps, be inferred from the fact that the process has been misused or misapplied, the reverse is not true, for if the act of the prosecutor is in itself regular, the motive, ulterior or otherwise, is immaterial." Mini-Togs , 354 So.2d at 1390. The Delcambres have not shown that there was anything irregular in the process of Det. Melton investigating Mr. Sheeley's claims of theft or in the issue of the warrant. Mr. Sheeley denied any involvement by Lt. Blanchard in his decision to file a criminal complaint and Det. Melton has denied that Lt. Blanchard influenced his investigation. The Delcambres have not produced any evidence to the contrary. Det. Melton obtained a valid Arrest Warrant for Mrs. Delcambre, which was effectuated. Although Lt. Blanchard did assist in facilitating her arrest, there is no evidence that him doing so was specifically prohibited. Det. Melton's discovery responses merely indicate that sending Lt. Blanchard the warrant was "not really" normal procedure, but there is no evidence that it was improper procedure for a lieutenant to assist in facilitating a valid arrest. Additionally, unlike the cases discussed above, Lt. Blanchard did not initiate a legal process to obtain a collateral objective. Mr. Sheeley filed a claim and that claim was investigated by Det. Melton. The Delcambres failed to present any factual support sufficient to create a genuine issue of material fact regarding Lt. Blanchard and an abuse of process claim.

As to Det. Melton, the Delcambres have not provided evidence of either element of an abuse of process. Defendants set forth facts that Det. Melton was not influenced by Lt. Blanchard and conducted his own investigation of a claim by a private citizen. Although Det. Melton acknowledges he was aware Lt. Blanchard had some issues with the daycare, there is no evidence to suggest that Det. Melton proceeded with this investigation in order to conspire in exacting revenge with Lt. Blanchard. Det. Melton stated he did not know that Lt. Blanchard would facilitate the arrest. The Delcambres did not present any factual support sufficient to establish the existence of a genuine issue of material fact regarding Det. Melton.

CONCLUSION :

Based on the foregoing, we reverse the trial court's decision to admit the affidavit of Pastor Frank Harris, III, and the letter from the daycare, which were attached to Defendants' reply brief. However, after a de novo review, we affirm the trial court's grant of partial summary judgment in favor of Defendants. Appellants, Betty Sue Delcambre and Joseph Delcambre are cast with the costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART.

      Det. Lavergne was in an unmarked vehicle and, therefore, could not stop Mrs. Delcambre.

      The Delcambres objected to the trial court admitting the exhibits attached to Defendants' reply brief.

      In their appellate brief, the Delcambres state, "The trial court ruled on Defendant's [sic] intentional infliction of emotional distress claim (paragraph 23 above) and Plaintiffs do not take issue with that portion of the trial court's ruling."


author: Judge Rosemary Ledet

text:
    Linda MADDOX v. The HOWARD HUGHES CORPORATION, Riverwalk Marketplace (New Orleans) LLC d/b/a the Outlet Collection at Riverwalk, et al
    NO. 2019-C-0135
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 17, 2019
    Richard G. Duplantier, Jr., Lindsey M. Soboul, GALLOWAY JOHNSON TOMPKINS BURR & SMITH, One Shell Square, Suite 4040, 701 Poydras Street, New Orleans, Louisiana 70139, COUNSEL FOR THE RELATOR/DEFENDANT
    Tim L. Fields, Jon Wasielewski, LAW OFFICE OF TIM L. FIELDS, 1750 St. Charles Avenue, Unit CU1, New Orleans, Louisiana 70130, COUNSEL FOR THE RESPONDENT/PLAINTIFF
    (Court composed of Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Dale N. Atkins )
   Judge Rosemary Ledet

This is a tort suit. The Relator, The Howard Hughes Corporation ("Howard Hughes"), filed an application for supervisory writ, seeking review of the trial court's judgment denying its motion for summary judgment. In accordance with the requirements of La. C.C.P. art. 966(H), we ordered additional briefing by the parties and heard oral arguments. For the reasons that follow, we grant Howard Hughes' writ application, reverse the trial court's ruling denying its summary judgment motion, and render summary judgment dismissing Ms. Maddox's claims against it.

FACTUAL AND PROCEDURAL BACKGROUND

On November 29, 2014, at about 10:45 p.m., Ms. Maddox slipped and fell while walking down a non-moving escalator at the Riverwalk Shopping Center (the "Riverwalk") in New Orleans, Louisiana. Ms. Maddox went to the Riverwalk that night to deliver a set of keys to her daughter, who was working as the manager of one of the restaurants in the food court. To get to the restaurant, which was located on an upper level of the Riverwalk, Ms. Maddox took an elevator. While at the restaurant, Ms. Maddox helped her daughter take out the garbage to a back hallway where the restaurants in the food court place their garbage and grease traps. After taking out the garbage, Ms. Maddox attempted to exit the Riverwalk using the same route by which she had entered. Although the mall closed at 9:00 p.m., other patrons were still present.

As Ms. Maddox was leaving, she observed that cleaning machines, which the cleaning company was using, had deposited water on the floor. After discovering that the elevator was turned off, Ms. Maddox walked through the water to the escalator, which likewise was turned off. Nonetheless, she decided to walk down the non-moving escalator, using it as a flight of stairs. When she stepped on the third step, Ms. Maddox's leg went out from under her and she fell, sustaining personal injuries.

Seeking to recover for her personal injuries, Ms. Maddox commenced this suit against, among others, Howard Hughes. Howard Hughes was sued in its capacity as the owner and operator of the Riverwalk and, by extension, its escalator. In her petition, Ms. Maddox alleged that Howard Hughes' is liable to her for its negligence as a "merchant" under La. R.S. 2800.6 and as the owner of the premises and, by extension, the escalator under La. C.C. art. 2317.1. In addition, Ms. Maddox alleges that Howard Hughes may be held liable under the theory of res ipsa loqitur.

After taking Ms. Maddox's deposition, Howard Hughes filed a motion for summary judgment. Following a hearing, the trial court denied the motion. In its oral reasons for judgment, the trial court observed as follows:

[T]here are issues on both sides whether or not the turning off of that escalator and the subsequent fall of the lady was contributed to in some manner by which there was no posting of a sign of warning or that the escalator was wet in some fashion. And whether or not these matters contributed to her incident is something that the trier of fact should determine. We do not make a determination on the merits of the case here, nor do we make a determination as to whether or not the escalator was unreasonably dangerous. The trier of fact is going to have to determine whether ... there was some negligence on the part of the owner of this property.

This writ application followed. As noted at the outset, we granted Howard Hughes' writ to address whether the trial court erred in denying its motion for summary judgment. For the reasons that follow, we answer that question in the affirmative.

Summary Judgment Principles

The summary judgment procedure is used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. La. C.C.P. art. 966(A)(3) (observing that "[a] motion for summary judgment is "a procedural vehicle for dismissing issues of law and/or fact that are not in dispute"). "A defendant can successfully move for summary judgment if he or she can demonstrate beyond peradventure the nonexistence of a fact essential to the plaintiff's cause of action." Frank L. Maraist, 1 LA. CIV. L. TREATISE , CIVIL PROCEDURE § 6:8 (2d ed. 2018). The summary judgment procedure is "designed to secure the just, speedy, and inexpensive determination of every action," and the summary judgment procedure is favored. La. C.C.P. art. 966(A)(2).

Appellate courts review the grant or denial of a motion for summary judgment de novo , employing the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Garces-Rodriguez v. GEICO Indem. Co. , 16-196, p. 3 (La. App. 5 Cir. 12/21/16), 209 So.3d 389, 391 ; Sislo v. New Orleans Ctr. for Creative Arts , 16-0178, p. 4 (La. App. 4 Cir. 8/17/16), 198 So.3d 1202, 1205 (citing Samaha v. Rau , 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 ). The standard for granting a motion for summary judgment is set forth in La. C.C.P. art. 966(A)(3), which provides:

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.

A shifting burden of proof is set forth in La. C.C.P. art. 966(D)(1), which provides:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Chapital v. Harry Kelleher & Co., Inc. , 13-1606, p. 5 (La. App. 4 Cir. 6/4/14), 144 So.3d 75, 81. Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown , 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270 (citing Smith , supra ).

Discussion

In her petition, Ms. Maddox asserts various tort theories of recovery requiring proof of the existence of a defect in the escalator. See La. C.C. arts. 2317, 2317.1, and 2322. "A defect, within the meaning of Article 2317.1, is a condition or imperfection in an object that causes it to present an unreasonable risk of injury to persons exercising ordinary care." Conner v. Kraemer-Shows Oilfield Servs., LLC , 33 F.Supp.3d 725, 728 (W.D. La. 2014). The existence of a defect may not be inferred solely from the fact that an accident occurred; rather, a plaintiff is required to prove, by a preponderance of the evidence, the existence of a defect and that the defect caused the plaintiff's damages. King v. Allen Court Apartments II , 15-0858, p. 7 (La App. 1 Cir. 12/23/15), 185 So.3d 835, 840 (citing Thompson v. BGK Equities, Inc. , 04-2366 (La. App. 1 Cir. 11/4/05), 927 So.2d 351, 355 ).

In its motion for summary judgment, Howard Hughes argued that Ms. Maddox could not meet her burden of establishing the existence of a defect because she "cannot identify or describe what allegedly caused her to slip and fall after stepping onto the escalator." In support of its motion, Howard Hughes attached a copy of Ms. Maddox's deposition in which she repeatedly stated that she did not know what caused her fall. When asked whether she knew what caused her to fall, she replied no. When asked whether she saw anything on the escalator which would have caused her to fall, she replied no. When asked whether the escalator steps were slippery, she replied "I can't tell you that one. I don't know."

We find that Howard Hughes met its initial burden of establishing that Ms. Maddox will not be able to meet her burden of proving an essential element of her claim-the existence of a defect. As provided for in La. C.C.P. art. 966(C)(2), the burden shifted to Ms. Maddox to set forth specific facts to show a genuine issue of material fact for trial. We find that she failed to do so.

As Howard Hughes points out, outside of the escalator being turned off-non-moving-Ms. Maddox has alleged no other defect in the escalator that could have caused her to fall. Howard Hughes argued before the trial court that to accept Ms. Maddox's argument that all escalators that are turned off are unreasonably dangerous would lead to absurd consequences. Indeed, the gist of Ms. Maddox's argument is that a non-moving escalator is inherently defective. We find this argument unpersuasive and insufficient to withstand summary judgment.

Ms. Maddox provides no factual support, expert testimony, statute, or case law supporting her allegation that a non-moving escalator poses a great risk of harm to an individual attempting to utilize it than would a set of stairs. She simply alleges that Howard Hughes should have known, and that it was reasonably foreseeable, that a patron might attempt to use a shut down escalator as stairs if the escalator was not blocked off and no warning sign was posted. She further alleges that Howard Hughes should have known that the use of a shutdown escalator would pose a great risk of harm to a patron attempting to walk down it. She also speculates that "[t]he treads of the escalator not being the same as stair treads it is unreasonably dangerous to allow the escalator to be used in this manner."

"[A]llegations [that a non-moving escalator is more dangerous than stairs], inferences [that since her feet were dry and it was the nearest exit to her vehicle, the escalator was the cause of her fall], and speculations [that the escalator treads were not the same as stair treads] are not sufficient to create a genuine issue of material fact." Smith v. Casino New Orleans Casino , 12-0292, p. 11 (La. App. 4 Cir. 10/3/12), 101 So.3d 507, 514 ; Thomas v. Caesars Entm't Operating Co., Inc. , 12-1202, pp. 3-4 (La. App. 4 Cir. 1/23/13), 106 So.3d 1279, 1284 (Ledet, J., dissenting);

Reed v. Home Depot USA, Inc. , 37,000 at p. 5 (La.App. 2 Cir. 4/9/03), 843 So.2d 588, 591-92 (observing that "without more evidence, the fact that the plaintiff slipped and fell on the defendant's premises does not compel a finding that the premises were unreasonably dangerous").

Moreover, Ms. Maddox's argument, as Howard Hughes contends, essentially invokes the doctrine of res ipsa loquitur -because she fell, there must have been a defect in the escalator. Res ipsa loquitur is "a rule of circumstantial evidence whereby negligence is inferred on the part of the defendant because the facts indicate that the defendant's negligence is the most probable cause of the injury." Nicholson v. Horseshoe Entm't , 46,081, p. 8 (La.App. 2 Cir. 3/2/11), 58 So.3d 565, 570. Res ipsa loquitur is a qualification to the general rule against presuming negligence based on the happening of an accident and, thus, must be "sparingly applied." Day v. National U.S. Radiator Corp. , 241 La. 288, 128 So.2d 660, 665 (1961). To invoke the doctrine, a plaintiff must satisfy all of the following three requirements:

1. the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant;
2. the defendant had exclusive control over the thing causing the injury; and
3. the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant's part.

Spott v. Otis Elevator Co. , 601 So.2d 1355 (La.1992).

Here, the first requirement cannot be satisfied. Res ipsa loquitor does not apply to cases involving ordinary accidents or injuries that often occur in the absence of negligence like this one. See Linnear v. CenterPoint Energy Entex/Reliant Energy , 06-3030, pp. 10-11 (La. 9/5/07), 966 So.2d 36, 44 ; RESTATEMENT ( SECOND ) OF TORTS § 328D (1965) (observing that "[t]he fact ... a man falls down stairs is not, in the absence of anything more, enough to permit the conclusion that there was negligence ... in the construction of the stairs, because it is common human experience that such events all too frequently occur without such negligence"). Given the first requirement cannot be satisfied, we need not consider the other two requirements. Ms. Maddox's reliance on the doctrine of res ipsa loquitor is misplaced.

CONCLUSION

Accordingly, we grant Howard Hughes' writ application, reverse the trial court's ruling denying its summary judgment motion, and render summary judgment dismissing Ms. Maddox's claims against it.

WRIT GRANTED; JUDGMENT REVERSED; AND RENDERED

LOBRANO, J., CONCURS IN THE RESULT.

      La. C.C.P. art. 966(H) provides as follows: "[o]n review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument."

      The statement of the facts is taken from Ms. Maddox's deposition testimony, which was the only evidence the parties presented to the trial court in connection with Howard Hughes' summary judgment motion.

      Among the other defendants was the cleaning company whose machines had deposited water on the floor of the Riverwalk. Ms. Maddox alleged in her petition that there was "a cleaning product, water, and/or other foreign substance" on the escalator at the time of her fall. This allegation, however, is inconsistent with Ms. Maddox's deposition testimony that she did not see anything on the escalator. Regardless, she has abandoned this claim. Moreover, according to Howard Hughes, Ms. Maddox settled her claim against the cleaning company.

      Although Ms. Maddox asserts a claim under the merchant liability statute, the jurisprudence has held that a shopping mall owner, such as Howard Hughes, is not a "merchant" as defined in the statute, La. R.S. 9:2800.6(C)(2). See Katsanis v. State Farm General Ins. Co. , 615 So.2d 1114 (La. App. 5th Cir. 1993) (observing that "[w]e do not find authority to extend that statute beyond the legislature's clear definition to include landowners. See Reynolds v. St. Francis Medical Center , 597 So.2d 1121 (La. App. 2[d] Cir. 1992)"). We thus find the merchant liability statute inapposite here.

      At this court's request, Howard Hughes supplemented its writ application was a copy of a signed judgment. Although the summary judgment motion was heard and decided by an ad hoc judge, the written judgment was signed by the district court judge who replaced the ad hoc judge when his term expired. See La. R.S. 13:4209(B)(1) (providing that "[i]n cases which are heard and in which judgment is rendered, but not signed, whether the case was taken under advisement or not, if the judge who rendered the judgment ... term expires before signing judgment in the case, his successor in office shall have the authority to sign a judgment which conforms with the judgment rendered").

      As Howard Hughes points out, Ms. Maddox's claim is properly analyzed using a modified duty-risk analysis applicable to premises liability claims under La. C.C. arts. 2317, 2317.1, and 2322, which requires a plaintiff to establish all of the following six elements:
      1. The thing was in the owner's custody or control;
      2. The thing contained a defect creating an unreasonable risk of harm;
      3. The damage was caused by the defect;
      4. The owner knew or should have known of the vice or defect;
      5. The owner could have prevented the damage by the exercise of reasonable care; and
      6. The owner failed to exercise such reasonable care.
      See Alexander v. Hancock Bank , 16-0662, pp. 5-6 (La. App. 4 Cir. 2/8/17), 212 So.3d 713, 717 ; See also Joseph S. Piacun, The Abolition of Strict Liability in Louisiana: A Return to a Fairer Standard or an Impossible Burden for Plaintiffs? , 43 Loy. L. Rev. 215, 235 (1997) (explaining that "[f]irst, the existing requirements under article 2317 must be satisfied" and that "[a]fter these requirements are satisfied, article 2317.1's negligence requirements must be met").

      Although Ms. Maddox alleged in her petition that there was a substance on the escalator that caused her to fall or that water from the cleaning company played a part in her falling, this is contradicted by her deposition testimony. As noted elsewhere in this opinion, Ms. Maddox has abandoned this argument. Indeed, Ms. Maddox argues that any danger posed to her by the wet and soapy floor had been removed by the rug she walked over before getting on the escalator.
      In her opposition to the summary judgment motion and to the instant writ application, Ms. Maddox characterizes the non-moving escalator as "the simplest means of Plaintiff exiting to her vehicle." Inconsistently, she argues that "there was no alternative route available to her" other than the non-moving escalator. In her deposition, however, Ms. Maddox acknowledged that the reason she did not go back into the Riverwalk and take the traditional way out using steps was because her "car was right down there at the bottom of the escalators." The record thus reflects that Ms. Maddox decided not to reenter the Riverwalk to go down the regular steps because her car was parked near the bottom of the escalator and that she had other exits available.

      Because Ms. Maddox cannot establish a defect, she likewise cannot establish another element of her claim-cause-in-fact. Simply stated, "[t]here must be a causal relationship between the defendant's wrongful act and the plaintiff's injury." Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 4.01 (2d ed. 2018); see also Garrison v. Old Man River Esplanade, L.L.C. , 13-0869, p. 5 (La. App. 4 Cir. 12/18/13), 133 So.3d 699, 702 (observing that "[i]nherent in these elements [of establishing liability under La. C.C. art. 2317.1 ] is that the vice or defect [here the non-moving escalator] causes the injury").

      Given our finding that the elements of defect and cause-in-fact are not met, we do not reach the alternative argument Howard Hughes makes that any alleged defect was open and obvious.

      See Adamo v. Nat'l R.R. Passenger Corp. , 71 A.D.3d 557, 558, 897 N.Y.S.2d 85, 87 (2010) (observing that "[t]he temporarily stationary stairway [non-moving escalator] did not present a reasonably foreseeable hazard ..., particularly in the absence of any allegation that it was in ill repair ..., or that any of the steps, including the one on which she tripped, was defective or covered with debris"); Ugaz v. Am. Airlines, Inc. , 576 F.Supp.2d 1354, 1366 (S.D. Fla. 2008) (observing that "it would be speculation to say that the [sic] it was the escalator's stationary status that caused the Plaintiff's fall" and finding that that "a nonoperational or stopped escalator, standing alone, is not reasonably considered an 'unusual or unexpected event' constituting an 'accident").


author: THERIOT, J.

text:
    Regina DELATTE v. WASHINGTON PARISH SCHOOL BOARD
    NO. 2018 CA 0575
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 21, 2018
    Thomas B. Delsa, Laurie W. Maschek, Slidell, Louisiana, Counsel for Plaintiff/Appellant, Regina Delatte
    John J. Rabalais, Matthew D. Crumhorn, Megan C. Gladner, Covington, Louisiana, Counsel for Defendant/Appellee, Washington Parish School Board
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   THERIOT, J.

Regina Delatte appeals the judgment of the Office of Workers' Compensation, District 6, of the Parish of Washington (OWC), in which she was awarded temporary total disability (TTD) benefits and was denied penalties and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 30, 2015, Ms. Delatte suffered a work-related injury at her place of employment, Franklinton Junior High School, where she alleged she was lifting a box of juice when she "felt a pull in her lower back and froze up." At the time of the accident, Ms. Delatte was earning an annual salary of $45,949.92 from her employer, the Washington Parish School Board (the School Board), earning $883.65 weekly. The annual pay period spanned from August to August. Ms. Delatte continued to work after the accident and was released to full unrestricted duty by Dr. H. Reiss Plauche on October 26, 2015.

Ms. Delatte worked in her pre-injury position of Physical Education teacher until April 11, 2017. The parties stipulated that Ms. Delatte was on a no-work status from April 11, 2017 to July 25, 2017. Ms. Delatte did not work from April 11, 2017, until May 25, 2017, which was the last day of school, but received a paycheck in the amount of $3,862.50 on April 25, 2017, for the pay period of April 1 through 30, 2017. She was paid for April 12, 2017 and was deducted one day of sick leave, but was not paid for April 13, 2017, since she had run out of sick leave time.

On May 25, 2017, Ms. Delatte received a paycheck in the amount of $2,461.81 from her employer, covering the pay period of May 1 through 31, 2017 and 5.5 hours of sick leave for the dates of April 24 through 28, 2017. She did not receive a paycheck on the next scheduled payment date, June 25, 2017, since she did no work in that month and had used all of her sick time during the previous month.

On July 25, 2017, Ms. Delatte received a paycheck in the amount of $3,140.94 for the pay period of July 1 through 31, 2017 and for 18 hours of sick leave time from the previous month. On August 4, 2017, Ms. Delatte returned to work in her pre-injury position. From April 12, 2017 to August 4, 2017, Ms. Delatte had not worked in any capacity for the School Board. The School Board fully compensated Ms. Delatte for all the medical treatment she received for her work-related accident.

On April 25, 2017, Ms. Delatte filed a disputed claim for compensation against the School Board, in which she claimed that she sustained a developmental injury for which she had been taken off work by Dr. Lori Summers on April 11, 2017, and the School Board had refused to pay her indemnity benefits. Ms. Delatte sought penalties, attorney fees, and costs in connection with the School Board's refusal to pay indemnity benefits. The School Board raised affirmative defenses to Ms. Delatte's disputed claim, alleging that Ms. Delatte was never disabled from her accident, and that medical treatment sought by Ms. Delatte was not first approved by the School Board.

On October 12, 2017, the School Board filed a peremptory exception of prescription, alleging that Ms. Delatte's work-related injury occurred on September 30, 2015, and that she failed to file a claim for indemnity benefits within a year from that date. In her opposition to the exception, Ms. Delatte claimed that her disability did not manifest until April 11, 2017, when Dr. Summers removed her from work due to a developmental injury, therefore making her filing of the disputed claim timely.

A hearing was held on the exception, and on November 8, 2017, the OWC signed an order denying the School Board's peremptory exception. The School Board has not appealed this ruling. Ms. Delatte alleges in her brief that after the order was signed, the School Board refused to pay indemnity benefits to her. Trial was held on January 12, 2018. By judgment signed January 23, 2018, the OWC granted judgment in favor of Ms. Delatte, finding she was entitled to TTD benefits for the period of April 12, 2017 to July 25, 2017, awarding a total of $2,179.78 in indemnity benefits. Her requests for penalties and attorney fees was denied, and each party was made liable for its own costs. Ms. Delatte has appealed this judgment.

ASSIGNMENT OF ERROR

Ms. Delatte's sole assignment of error contains two issues. First, Ms. Delatte claims the OWC erred when it determined the School Board was entitled to a credit/offset for the salary paid to her for work performed during the school year. Second, she claims the OWC erred in not assessing penalties and attorney fees for the failure of the School Board to pay indemnity benefits.

STANDARD OF REVIEW

Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc. , 96-2840 (La. 7/1/97), 696 So.2d 551, 556. A workers' compensation claimant who seeks temporary total or permanent total disability benefits must prove by clear and convincing evidence, unaided by any presumption of disability, that she is physically unable to engage in any employment or self-employment, regardless of the nature or character of the work. La. R.S. 23:1221(1)(c) and (2)(c). In the absence of such evidence, the claimant's demand for temporary total or permanent total disability benefits fails. Nitcher v. Northshore Regional Medical Center , 2011-1761 (La. App. 1 Cir. 5/2/12), 92 So.3d 1001, 1007, writ denied, 2012-1230 (La. 9/21/12), 98 So.3d 342 ; See also Walker v. High Tech Refractory Services, Inc., 2003-1621 (La. App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. Walker , 885 So.2d at 1188. While the workers' compensation laws are to be construed liberally in favor of the claimant, that interpretation cannot lessen the claimant's burden. Nitcher, 92 So.3d at 1007 ; Isaac v. Lathan , 2001-2639 (La. App. 1 Cir. 11/8/02), 836 So.2d 191, 199. Ultimately the question of disability is a question of fact, which cannot be reversed in the absence of manifest error. Tillery v. State, Department of Public Safety and Corrections, 2007-1228 (La. App. 1 Cir. 2/8/08), 984 So.2d 742, 744.

DISCUSSION

In the instant case, the parties stipulated that Ms. Delatte's disability status commenced on April 11, 2017 and ended on July 25, 2017. We therefore accept those stipulations as clear and convincing evidence that Ms. Delatte was disabled from April 12, 2017 to July 25, 2017.

The OWC found that Ms. Delatte was not paid disability benefits for 26 days, and that at the stipulated disability rate of $589.13 a week, she was entitled to $2,179.78. April 12, 2017 to the end of school on May 25, 2017 comprised 32 work days. It was stipulated that during that time, Ms. Delatte was paid for April 12 while on sick leave, and during spring break she was paid from April 15 to April 19. Subtracting those six paid days, there were 26 days during the school year where Ms. Delatte did not work during her disability period and was not paid.

Ms. Delatte contends that the School Board should not receive any credit for salary it paid to her, and that her benefits should extend beyond May 25, 2017 to July 25, 2017, which is when her disability status ended. In support of this position she cites Thomas-Young v. Allen Parish School Board , 2000-1491 (La. App. 3 Cir. 3/8/01), 780 So.2d 1273, writ denied, 2001-1394 (La. 6/29/01), 794 So.2d 815, in which a school librarian was entitled to TTD benefits during the summer months, even though she received a full salary or paid sick leave benefits during that time; although she was employed on a nine month basis, her salary was paid over twelve months. Id., 1277-78. Ms. Delatte argues that her case is very similar in its circumstances to the claimant's in Thomas-Young .

We, however, find Thomas-Young to be distinguishable from the present case. The claimant in Thomas-Young suffered a neck injury just five days prior to the end of the school term, and had paid sick leave available to her for those final five days. She did not return to work at the beginning of the next school term as Ms. Delatte had done, but returned in November of the following school term, then took extended sick leave from December to August of the following year. Her salary and benefits had been deducted so that a substitute teacher could be paid. Id., 1275. The trial court ruled, and the court of appeal affirmed, to reimburse the claimant for deductions to her TTD benefits to cover the cost of hiring a substitute teacher. Id. , 1279.

In the instant case, Ms. Delatte's disability status began towards the end of one school year and ended before the next school year began. The school did not make deductions from her salary to pay a substitute teacher. Ms. Delatte claims she is entitled to her salary, plus TTD benefits for fifteen weeks of disability. This would mean she would collect her regular salary of $45,949.92, and receive an additional $8,836.95. We find such a result would be contrary to La. R.S. 17:1201(D)(1), which states:

Any member of the teaching staff in the public schools who is injured or disabled while acting in his official capacity shall be entitled to weekly wage benefits under the workers' compensation law of the state of Louisiana and/or to sick leave benefits under Subsection A of this Section, at his option, but in no event shall such benefits exceed the total amount of the regular salary the member of the teaching staff was receiving at the time the injury or disability occurred. (Emphasis added).

To award Ms. Delatte the full amount she requests would essentially equate to giving her a raise of $6,657.17. The OWC was therefore reasonable and not manifestly erroneous in awarding Ms. Delatte $2,179.78.

Ms. Delatte also requested penalties and attorney fees for the School Board's nonpayment of disability. An employee is entitled to penalties and attorney fees when the employer fails to provide payment of benefits. La. R.S. 23:1201(F). However, the employer shall not be ordered to pay penalties or attorney fees to the employee if the claim has been reasonably controverted. La. R.S. 23:1201(F)(2). The test to determine whether the employee's right has been reasonably controverted turns on whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. Ceasar v. Crispy Cajun Restaurant , 94-0030 (La. App. 3 Cir. 10/5/94), 643 So.2d 471, 477, writ denied, 94-2736 (La. 1/6/95), 648 So.2d 931.

Ms. Delatte sought $8,836.95 in TTD payments, and the School Board presented evidence through joint stipulation of Ms. Delatte's salary, the days she had worked and did not work, and the time for which she was paid. As a result, the OWC awarded $2,179.78 in TTD benefits to Ms. Delatte. Thus, the School Board reasonably controverted Ms. Delatte's claim with sufficient factual information. The OWC was therefore correct in finding the School Board was not liable for penalties and attorney fees for nonpayment of benefits. See La. R.S. 23:1201(F)(2).

DECREE

The judgment of the Office of Workers' Compensation, District 6, of the Parish of Washington, with respect to the entitlement and award of TTD benefits to the appellant, Regina Delatte, is affirmed. All costs of this appeal are assessed to the appellant, Regina Delatte.

AFFIRMED.

Guidry, J. concurs

      In addition, Ms. Delatte was paid her salary wages during the Spring Break period from April 14, 2017 to April 21, 2017.

      The presiding judge at the time was Gwendolyn F. Thompson.

      Judge Robert W. Varnado presided over the trial and rendered the final judgment.

      The stipulated commencement of Ms. Delatte's disability status is based on a prescription note written by Dr. Summers and dated April 11, 2017, which states, "Ms. Delatte is unable to work [at] this time." The release date of July 25, 2017 was agreed upon by the parties by joint stipulation, although any authorization of that date by Dr. Summers or another physician is absent in the record.

      See Gayle v. Porter , 239 So.2d 739 (La. App. 4 Cir. 1970), writ denied, 257 La. 171, 241 So.2d 531 (1970).