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Faust v. Pesses

Court of Appeal of Louisiana, Fourth Circuit

February 11, 2015

DONNY ANDERSON FAUST
v.
GAIL F. PESSES

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2012-06580, DIVISION " C" . HONORABLE SIDNEY H. CATES, JUDGE.

TIMOTHY S. MADDEN, KING KREBS & JURGENS, PLLC, New Orleans, Louisiana, Counsel for Plaintiff/Appellant.

HERVIN A. GUIDRY, BASTIAN & ASSOCIATES, New Orleans, Louisiana, Counsel for Defendant/Appellee.

(Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Max N. Tobias, Jr.). TOBIAS, J., CONCURS IN THE RESULT.

OPINION

JAMES F. MCKAY III, J.

Page 921

[2014-0788 La.App. 4 Cir. 1] Gail F. Pesses, MSW, LCSW is a licensed social worker in the state of Louisiana. On October 25, 2010, Ms. Pesses was appointed by Judge Paula Brown of the Civil District Court for the Parish of Orleans to prepare a custody evaluation in connection with a pending divorce action between Donny Anderson Faust and Sheri Sport Faust.[1] On March 11, 2011, Ms. Pesses sent her written evaluation to Judge Brown and the attorneys for the parties. Thereafter, the parties entered into a consent judgment regarding the custody of the children.

On July 6, 2012, Mr. Faust filed a petition for damages for malpractice against Ms. Pesses. Mr. Faust alleged that Ms. Pesses improperly and negligently made a number of conclusions in her report and that she exceeded the scope of her appointment by the court. On October 15, 2013, Ms. Pesses filed a motion for summary judgment, contending that under Louisiana law, court-appointed experts are entitled to absolute immunity from suit for claims arising out of their service as an expert. The motion for summary judgment came before the trial court on November 22, 2013, at which time the trial court orally granted the motion. On [2014-0788 La.App. 4 Cir. 2] December 19, 2013, the trial issued a written judgment confirming its earlier ruling. It is from this judgment that Mr. Faust now appeals.

On appeal, Mr. Faust contends that the trial court committed legal error in granting summary judgment in favor of Ms. Pesses because disputed issues of material fact continue to exist with respect to whether or not Ms. Pesses is entitled to judicial immunity.

An appellate court reviews the granting of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. See Jones v. Buck Kreihs Marine Repair, L.L.C., 2013-0083, p. 1 (La.App. 4 Cir. 8/21/13), 122 So.3d 1181, 1183.

Under Louisiana law, the " summary judgment procedure is favored and shall be construed, as it was intended, to secure the just, speedy and inexpensive determination of most actions." Magnon v. Collins, 98-2822, p. 5 (La. 7/7/99), 739 So.2d 191, 195. Summary judgment shall be rendered forthwith if there are no genuine issues of material fact and the mover is entitled to judgment as a matter of law. Taylor v. Rowell, 98-2865, p. 3 (La. 5/18/99), 736 So.2d 812, 814; Azreme, Corp. v. Esquire Title Corp., 98-1179, p. 5 (La.App. 5 Cir. 3/30/99), 731 So.2d 422, 425-426.

The standard for summary judgment no longer encompasses a presumption in favor of trial on the merits. Hutchinson v. Knights of Columbus, 2003-1533, p. 5 (La. 2/20/04), 866 So.2d ...


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