Payne T. Trichell v. Christopher McClurePayne T. Trichell v. Christopher McClure
Charles L. Trichell Baton Rouge, Louisiana Attorney for Plaintiff/Appellant, Payne T. Trichell
H. Alston Johnson, III J. Alan Harrell Gregory J. Reda Baton Rouge, Louisiana Attorneys for Defendant/Appellee, GAA-Nicholson, LP
BEFORE: MCDONALD, LANIER, AND WOLFE, JJ.
McDonald, J. dissents
WOLFE, J.
FACTS
In the early morning hours of September 7, 2011, twenty-one-year-old Trichell returned home to the Indigo Park Apartments in Baton Rouge and took a golf cart for a joyride around the apartment complex.
Trichell instituted this suit against McClure, seeking damages for his injuries. In his answer, McClure asserted a third-party demand against GAA-Nicholson Commercial, LP, d/b/a Indigo Park Apartments (“GAA“), alleging that he worked in a dual capacity as a Baton Rouge police officer and as an employee of GAA. Trichell then amended his рetition to name GAA as a defendant, alleging it was vicariously liable for the acts of its employee, McClure. GAA denied the allegations and asserted various affirmative defenses.
In January 2021, almost ten years after the incident at issue and more than six years after Trichell filed his amended рetition naming GAA as a defendant, GAA filed a motion for summary judgment seeking dismissal of all claims against it. GAA argued it could not be held vicariously liable for McClure‘s actions because McClure was acting as an independent contractor at the time of the incident, not a GAA employee. Trichеll moved to continue the hearing on GAA‘s motion on the basis of outstanding discovery. Trichell then opposed the motion for summary judgment on the same basis he sought the continuance and further argued that GAA‘s motion for summary judgment raised a new issue that necessitated additional discovery and rendеred the motion premature. The trial court denied the motion to continue and granted the motion for summary judgment, dismissing all claims against GAA. Trichell now appeals.1
DISCUSSION
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law.
The initial burden of proof is on the party filing the motion for summary judgment. See
Once the motion for summary judgment has been properly supported by the moving party (i.e., the mover has established the material facts through its supporting documentary evidence), and the mover has made a prima facie showing that the motion for summary judgment should be granted, the burden shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to his opposition, sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial - the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La. 6/30/00), 764 So. 2d 37, 39. If the non-moving party fails to produce factual support in his opposition sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial,
In ruling on a motion for summary judgment, the trial court‘s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable faсt. Janney v. Pearce, 2009-2103 (La. App. 1st Cir. 5/7/10), 40 So. 3d 285, 289, writ denied, 2010-1356 (La. 9/24/10), 45 So. 3d 1078. Further, simply showing the presence of disputed facts is insufficient if there is no legal issue presented by those contested facts. See Franklin Credit Management Corp. v. Gray, 2007-1433 (La. App. 4th Cir. 1/14/09), 2 So. 3d 598, 603, writ denied, 2009-0476 (La. 4/17/09), 6 So. 3d 795. A “genuine” issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonаble persons could reach only one conclusion, there is no need for a trial on that issue. Kasem v. State Farm Fire & Casualty Company, 2016-0217 (La. App. 1st Cir. 2/10/17), 212 So. 3d 6, 13. A fact is “material” when its existence or nonexistence may be essential to a plaintiff‘s cause of action under the applicable theory of recovery. Id. Becausе the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case. Bryant v. Premium Food Concepts, Inc., 2016-0770 (La. App. 1st Cir. 4/26/17), 220 So. 3d 79, 82, writ denied, 2017-0873 (La. 9/29/17), 227 So. 3d 288.
Under Louisiana law, an employer is vicariously liable for the negligence of its employees that оccurs within the course and scope of the employees’ employment. See
GAA contends that аn employer-employee relationship between it and McClure cannot be shown. In support of its motion for summary judgment, GAA submitted the Courtesy Officer Services Agreement executed by McClure and the apartment complex‘s property manager. The agreement provided that аs an independent contractor for the property management company, McClure agreed to serve as the on-site courtesy officer for a monthly fee that was to be credited against McClure‘s monthly rental obligation. Under the terms of the agreement, McClure was resрonsible for “providing a courteous presence among residents whenever ... on the property,” “assisting ... in the enforcement of rules and regulations regarding all common and recreational areas,” and generally assisting property management. The specific duties McClure was required to perform included being on call for disturbances or safety related calls; walking and patrolling the property on a random basis; checking the property‘s lights, gates, and leasing office security; locking designated areas nightly; attending as many social functions sponsored by the property as possible, but at least one each quarter; assisting management with resident problems when requested; attending instruction on crime prevention provided by management and participating with residents in crime prevention seminars; meeting with management three times wеekly; and notifying management of planned absences. In connection with those duties, McClure was provided a daily activity report on which to note the times areas of the property were checked and if criminal activity was observed, as well as a weekly report for thе lights on the property.
In further support of its motion, GAA submitted the affidavit of Jonathan Tucker, a management executive who attested that the methods and timing of completing the duties outlined in the agreement were within the control of the courtesy officer. Tucker stated that the officеrs had the discretion to perform their services and handle each situation based on their training and experience as law enforcement officers. The security officers, including McClure, were not provided with tools or training to perform the security-related duties and inspections, which were performed without the accompaniment of management or other apartment complex personnel.
GAA also submitted McClure‘s deposition testimony, in which he stated that he understood that courtesy officers were considered employees of the aрartment complex. However, he clarified that the only compensation he received was in the form of a discount on his rent obligation and that he received no tax forms from GAA, did not declare that amount on his own income tax return, and did not formally notify the Baton Rouge Policе Department of the arrangement though he believed the department was aware of it. McClure testified that on the night in question he saw Trichell on the golfcart while walking toward his own apartment after his shift with the police department. McClure explained that he used his police issued equipment as he stopped and handcuffed Trichell. Ultimately, McClure issued Trichell a summons for criminal mischief
GAA‘s summary judgment evidence sufficiently pointed out the absence of factual support for Trichell‘s claim that McClure was its employee. The evidence established that McClure handled the incident at his own discretion, according to his police training. The burden of proof then shifted to Trichеll to produce factual support, through the use of proper documentary evidence, sufficient to establish the existence of a genuine issue of material fact regarding whether McClure was GAA‘s employee. See
When a motion for summary judgment is made and supported as rеquired by law, an adverse party must respond with evidence that sets forth specific facts showing that there is a genuine issue for trial. If he does not, summary judgment, if appropriate, shall be rendered against him. See
Trichell filed no evidence in opposition to GAA‘s motion for summary judgment, arguing insteаd that the motion was premature because there was outstanding discovery and because additional discovery was necessary.3 Trichell makes the same argument on appeal.
Louisiana Code of Civil Procedure article 966 requires that parties have “an opportunity for adequate discovery” before summary judgment is granted. The requirement is that adequate discovery be conducted, not that discovery be completed. Law Offices of Lehman v. Rogers, 2021-0682 (La. App. 1st Cir. 12/22/21), ___ So.3d ___ (2021 WL 6071600, *3). There is no absolute right to delay a motion for summary judgment until discovery is complete. Preston v. Southern University Through Board of Supervisors of Southеrn University Agricultural and Mechanical College, 2020-0035 (La. App. 1st Cir. 7/13/21), 328 So. 3d 1194, 1203. The trial court has broad discretion when regulating pre-trial discovery, which will not be disturbed on appeal absent a clear showing of abuse. It is within the trial court‘s discretion to render a summary judgment or require further discovery. Campbell v. Dolgencorp, LLC, 2019-0036 (La. App. 1st Cir. 1/9/20), 294 So. 3d 522, 527.
Trichell seeks damages for a 2011 incident. GAA filed its answer in 2017, denying Trichell‘s allegations of liability. To prove his theory of vicarious liability, Trichell bore the burden of proving an employer-employee relationship between GAA and McClure. See Hillman, 805 So. 2d at 1163. We are not persuaded by Trichell‘s argument that the emрloyer-employee relationship was not at issue until GAA filed its motion for summary judgment. Further, given the length of time involved, we are not persuaded that the trial court abused its discretion in rendering
On appeal, Trichell argues for the first time that GAA waived the independent contractor defense by failing to plead it in its answer. Under
On the motion for summary judgment, Trichell failed to show that he would be able to bear his burden at trial of proving that McClure, the alleged tortfeasor, was an еmployee of GAA. Thus, the trial court was correct in granting summary judgment and dismissing Trichell‘s claims against GAA.
CONCLUSION
The May 17, 2021 summary judgment dismissing Trichell‘s claims against GAA-Nicholson, LP, is affirmed. All costs of this appeal are assessed to Payne T. Trichell.
AFFIRMED.
WOLFE, J.