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Sullivan v. Malta Park

Court of Appeal of Louisiana, Fourth Circuit

December 10, 2014

JUDITH SULLIVAN AND WILMOTH THOMPSON
v.
MALTA PARK, DONALD RANKEY, MARIE LETELLIER, WILLWOODS COMMUNITY MANAGEMENT, INC. AND HOMELIFE IN THE GARDENS

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2013-01355, DIVISION " I-14" . Honorable Piper D. Griffin, Judge.

James J. Carter, Jr., JAMES CARTER & ASSOCIATES, New Orleans, LA; Madro Bandaries, MADRO BANDARIES, PLC, New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT.

Caitlin Morgenstern, Frederick E. Schmidt, KOCH & SCHMIDT, LLC, New Orleans, LA; Marta-Ann Schnabel Kevin C. O'Bryon Sherry Watters, O'BRYAN & SCHNABEL, PLC, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLEES.

(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins).

OPINION

Page 752

[2014-0478 La.App. 4 Cir. 1] Rosemary Ledet, Judge.

This appeal involves a claim for intentional infliction of emotional distress (" IIED" ) by a non-client, Judith Sullivan, against her adversary's lead attorney, F. Evans Schmidt.[1] From the trial court's judgment granting Mr. Schmidt's peremptory exception of no cause of action, Ms. Sullivan appeals.[2] The narrow issue presented is whether, in the context of a discovery deposition, a defense attorney posing offensive questions to a seventy-year-old, medically impaired plaintiff who was living in an assisted living facility and alleged to be terminally ill, constitutes outrageous conduct. The gist of the offensive questions is whether the plaintiff knew that her two attorneys--one of whom was her husband-caretaker; the other was her husband's law partner--were having an affair. The plaintiff alleges that the defense attorney knew that the questions, which were posed as affirmative statements, were false. Based on our review of the petition, we find the questions were not relevant, pertinent, or material to the underlying [2014-0478 La.App. 4 Cir. 2] suit. Given the irrelevant nature of the questions coupled with the plaintiff's vulnerable condition, we find the plaintiff has stated an IIED cause of action. We thus reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

From December 2011 until November 2012, the plaintiff, Ms. Sullivan, was a resident

Page 753

of Malta Park, a former assisted living facility located in New Orleans, Louisiana. In November 2012, Ms. Sullivan's husband-caregiver, Madro Bandaries,[3] removed her, for her safety, from Malta Park and placed her at another assisted living facility, St. Francis Villa Assisted Living (" St. Francis" ). In February 2013, Ms. Sullivan and another named plaintiff commenced this suit against, among others, Malta Park.[4] In their original petition, the plaintiffs asserted tort and contract claims arising out of the deficient care Malta Park provided to them while they were residents there.[5] Ms. Sullivan also asserted that Malta Park had fraudulently attempted to seek extra funds from her by reassessing her at a [2014-0478 La.App. 4 Cir. 3] higher level of care. M. Claire Trimble and Mr. Bandaries, both members of Madro Bandaries PLC, signed the original petition as the plaintiffs' attorneys.

During the course of discovery in this case, the Malta Park Defendants' attorneys noticed Ms. Sullivan's deposition. On October 7, 2013, Mr. Schmidt, the Malta Park Defendants' lead counsel, took Ms. Sullivan's deposition at St. Francis. Present at the deposition were the following people: (i) Mr. Schmidt, Malta Park's lead attorney; (ii) Caitlin Morgenstern, Mr. Schmidt's associate and another attorney for Malta Park; (iii) Ms. Trimble, Ms. Sullivan's attorney and Mr. Bandaries' associate; and (iii) Mr. Bandaries, Ms. Sullivan's husband-caregiver and also her attorney. Mr. Bandaries was present at the deposition in his capacity as caregiver, not as attorney. At the conclusion of the deposition, the following colloquy occurred between Mr. Schmidt and Ms. Sullivan:

Q. [Mr. Schmidt] Do you know who this lady is next to you?
A. [Ms. Sullivan] Yes
Q. [Mr. Schmidt] Who's that?
A. [Ms. Sullivan] My husband's partner.
Q. [Mr. Schmidt] Now, did you talk to her about bringing this lawsuit?
A. [Ms. Sullivan] I don't remember.
Q. [Mr. Schmidt] Okay. Did she talk to you about the lawsuit?
A. [Ms. Sullivan] I don't remember.
Q. [Mr. Schmidt] Okay. Has Ms. Trimble ever talked to you about her having a sexual relationship with your husband?
A. [Ms. Sullivan] No.
[2014-0478 La.App. 4 Cir. 4] MR. BANDARIES:
Hold on. Now, I don't know where you got that or even--but mark that because

Page 754

I'm going to take it before the judge, okay?
MR. SCHMIDT:
That's fine.
MR. BANDARIES:
Okay. We're going to do that. That's so far off the reservation it's unbelievable. Okay. Mark it, ma'am, and I want a copy of that deposition.
Q. (BY MR. SCHMIDT) Has your husband ever talked to you about having a sexual relationship with Ms. Trimble?
A. [Ms. Sullivan] No.
Q. [Mr. Schmidt] and you have no knowledge of that.
A. [Ms. Sullivan] No.
Q. [Mr. Schmidt] Okay. I have no other ...

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