176 So. 3d 689
La. Ct. App.2015Background
- Mary N. Boros worked for Performance Medical (owned by Mark Lobell) and had a consensual personal relationship with Lobell during employment; she later alleged pay reduction and termination.
- After threatening a sexual-harassment suit, the parties executed a November 7, 2006 settlement that released Boros from a non-compete and included a mutual non-disparagement clause prohibiting statements that “disparage, criticize, defame or otherwise reflect negatively upon the name of the other.”
- Boros formed Specialized Diagnostics, LLC, which competed with Lobell’s businesses; she sued Lobell (and his companies) alleging he breached the non-disparagement clause by telling physicians that her billing practices were "illegal" and discussing their affair.
- Boros moved for partial summary judgment on liability relying on excerpts of Lobell’s deposition in which he reportedly admitted making certain statements; she presented no affidavits from the recipients of the alleged statements.
- Lobell opposed, arguing genuine factual disputes exist about what was said, when, to whom, the exact words, context, and whether statements about the LLC disparaged Boros personally.
- The trial court granted partial summary judgment for Boros on liability based on deposition admissions; the appellate court reversed, finding material factual issues remained and that Boros had not carried her summary-judgment burden.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lobell breached the settlement non-disparagement clause | Boros: deposition admissions that Lobell called her company’s billing "illegal" and discussed the affair prove breach | Lobell: deposition excerpts are vague, out of context; recipients and exact words unknown; factual disputes remain | Reversed — genuine issues of material fact exist; Boros failed to meet her burden |
| Whether deposition admissions alone suffice for liability at summary judgment | Boros: his admissions are sufficient proof of liability | Lobell: admissions are isolated; need testimony from persons who heard the statements and context | Reversed — depositions alone insufficient given unresolved contextual questions |
| Whether statements about Specialized Diagnostics constitute disparagement of Boros personally | Boros: LLC and Boros are sufficiently identified; statements about the LLC disparaged her name | Lobell: statements targeted the business, not Boros personally; non‑disparagement protects "the name of the other" | Reversed — material fact whether Boros’s name was identified with the LLC remains unresolved |
| Whether timing/context (before vs after settlement) affects liability | Boros: statements made after settlement (and thus covered) | Lobell: some statements may predate settlement (not covered); context and audience perception matter | Reversed — timing and context unresolved; summary judgment inappropriate |
Key Cases Cited
- Read v. Willwoods Community, 88 So.3d 534 (La. App. 5 Cir. 2012) (summary-judgment standard and appellate de novo review)
- Penalber v. Blount, 550 So.2d 577 (La. 1989) (summary judgment rarely appropriate for subjective facts like intent)
- Smith v. Our Lady of the Lake Hospital, Inc., 639 So.2d 730 (La. 1994) (procedural standards for summary judgment)
- Bell v. Rimkus Consulting Group, Inc., 40 So.3d 1070 (La. App. 5 Cir. 2010) (discussion of non-disparagement issues in Louisiana jurisprudence)