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Zaunbrecher v. Martin

Court of Appeals of Louisiana, Third Circuit

March 21, 2018

ZACHARY ZAUNBRECHER, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED FATHER, MICHAEL BLAKE ZAUNBRECHER
v.
MARISSA MARTIN, JEREMY PONTHIEUX, AND NATHAN PONTHIER

          ON WRIT OF CERTIORARI FROM THE TWELFTH JUDICIAL DISTRICT COURT, AVOYELLES PARISH, STATE OF LOUISIANA CIVIL SUIT NO. 2013-9544, DIV. "B" WILLIAM J. BENNETT, PRESIDING JUDGE

          COUNSEL FOR DEFENDANT/APPLICANT: Marissa Martin Charles A. Cerise, Jr. Edwin C. Laizer Kellen J. Matthews Louis C. LaCour, Jr.

          COUNSEL FOR DEFENDANTS/APPLICANTS: Amanda G. Clark

          COUNSEL FOR PLAINTIFF/RESPONDENT: Jeremy Ponthieux, Nathan Ponthier, Robert M. Marionneaux, Jr.

          COUNSEL FOR RESPONDENTS: Zachary Zaunbrecher, Duncan McKeithen, Michael T. Johnson

          Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

          JOHN E. CONERY JUDGE

         Defendants/Relators, Marissa Martin, Nathan Ponthier, and Jeremy Ponthieux, seek supervisory writs from the judgment of the Twelfth Judicial District Court, Parish of Avoyelles, the Honorable William J. Bennett presiding, which denied their motion for summary judgment on the issue of statutory immunity provided by La.R.S. 9:2800.1, the Louisiana Anti-Dram Shop Statute. For the following reasons, Ms. Martin's, Mr. Ponthier's, and Mr. Ponthieux's writs are granted and made peremptory. All claims made against Ms. Martin, Mr. Ponthier, and Mr. Ponthieux by Respondents, Zachary Zaunbrecher, individually and on behalf of his deceased father, Michael Blake Zaunbrecher, the Estate of Leo David, and Liberty Mutual Insurance Company, are dismissed with prejudice at Respondents' costs.

         Respondents' motion to strike the writ application of Marissa Martin is denied. Defendants' motion to strike Exhibits D and I of Plaintiff's opposition is granted.

         STATEMENT OF THE CASE

         This wrongful death suit arises out of a fatal automobile accident that occurred on July 11, 2013, involving Michael Blake Zaunbrecher, the father of Plaintiff, Zachary Zaunbrecher, and Leo J. David. Zachary Zaunbrecher (Mr. Zaunbrecher) initially filed suit, both individually and on behalf of his deceased father, Michael, against the Estate of Leo J. David, his insurer, Liberty Mutual Insurance Company, and Louisiana Farm Bureau, the uninsured motorist insurer of Michael Zaunbrecher. Plaintiff's petition alleged that Mr. David had a blood alcohol level of .21, and due to his intoxication, he negligently lost control of his vehicle, crossed the center line of La. Highway 1 in Avoyelles Parish, and ran head on into Michael Zaunbrecher's vehicle, causing his death. Mr. Zaunbrecher later amended his petition to add as defendants the Tunica-Biloxi Gaming Authority, d/b/a/ Paragon Casino Resort, (Paragon) and three of its employees in their individual capacities: Ms. Martin, a bartender, and Mr. Ponthier and Mr. Ponthieux, security guards (collectively, employee defendants). Plaintiff claims that Ms. Martin negligently overserved an already intoxicated Mr. David, and that the security guards failed to take steps to prevent Mr. David from leaving the casino in an obviously intoxicated state constituting a contributing cause of the accident and damages to Mr. Zaunbrecher. Paragon and the employee defendants answered the petition and filed exceptions of lack of subject matter jurisdiction, no cause of action and lis pendens.[1] Paragon Casino was owned and operated by the Tunica-Biloxi tribe, and the tribe claimed sovereign immunity prohibited claims in Avoyelles Parish District Court for the casino and its employee defendants.

         On May 18, 2015 the trial court held a hearing on the defendants' exception of lack of subject matter jurisdiction based on tribal sovereign immunity, granted the defendants' exception and dismissed Mr. Zaunbrecher's claims against Paragon and the employee defendants. Mr. Zaunbrecher filed a timely appeal with this court.

         On appeal, a panel of this court held the doctrine of sovereign immunity applied to the Tunica-Biloxi Gaming Authority d/b/a/ Paragon Casino Resort, thereby affirming the dismissal of Paragon. However, the panel found that the doctrine of sovereign immunity did not apply to its employees named in their individual capacities and reversed the trial court's ruling dismissing Ms. Martin, Mr. Ponthier, and Mr. Ponthieux. See Zaunbrecher v. Estate of David, 15-769 (La.App. 3 Cir. 12/9/15), 181 So.3d 885, writ denied, 16-49 (La. 2/26/16), 187 So.3d 1002.

         Certiorari was then denied by the Supreme Court in Tunica-Biloxi Gaming Authority v. Zaunbrecher, 85 U.S. 3521, 85 U.S. 3522, 137 S.Ct. 2091 (2017). The suit against the employee defendants was remanded to state district court for further proceedings.

         On August 23, 2017, the employee defendants filed a motion for summary judgment seeking (for the first time) dismissal of the entirety of the suit against them based on statutory immunity provided by La. R.S. 9:2800.1. On September 27, 2017, the employee defendants' motion for summary judgment was heard and ultimately denied by the trial court. On October 12, 2017, the employee defendants filed this application for supervisory writs seeking reversal of the trial court's ruling denying their motion for summary judgment and requesting expedited consideration due to the jury trial that was scheduled for October 31, 2017.

         The dismissal of Paragon from the original case addressed only the doctrine of sovereign immunity of the Tunica-Biloxi nation, the owner of the Paragon Casino. This writ is the first time this court has addressed the statutory immunity granted by La.R.S. 9:2800.1 in relation to the three remaining defendants in their individual capacities.

         While the original writ in CW-17-932 was pending before this court, on October 13, 2017, the trial court denied the employee defendants' motion to continue the jury trial. On October 17, 2017, the employee defendants notified this court of the trial court's decision to deny the continuance and on October 30, 2017, sought a stay of the jury trial, which was also denied by the trial court. The employee defendants then filed an emergency writ, in docket number CW-17-1015, seeking a stay of the jury trial pending consideration of their application for supervisory writs. A Stay Order was issued by this court on October 31, 2017, in docket number CW-17-1015. We also instructed the parties to submit supplemental briefs and allowed the parties until November 15, 2017, to request oral argument in the original docket number CW- 17-932. A timely oral argument request was made by the employee defendants, and oral argument was fixed for January 24, 2018, pursuant to La.Code Civ.P. art. 966(H) which states, "On 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."

         SUPERVISORY RELIEF

         "A court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time according to the discretion of the court." Herlitz Constr. Co., Inc., v. Hotel Investors of New Iberia, Inc., et al, 396 So.2d 878, 878 (La.1981) (per curium). "This general policy, however, should not be applied mechanically." Id. Thus, when the trial court's ruling:

is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

Id.

         This case involves the determination of a question of law as to whether the employee defendants are entitled to qualified immunity from this lawsuit under a specific statute. The "immunity" operates not as a defense to liability, but as a complete bar to the suit itself. In determining the question of qualified immunity, the United States Supreme Court has ruled that the defendant has an entitlement to avoid the costs and expense of standing trial. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806 (1985). We issued a stay order on October 31, 2017 (with one dissent) in CW-1015 precisely for that reason.

         Further, this court's supervisory jurisdiction may also be exercised to reverse a trial court's denial of a motion for summary judgment and to enter summary judgment in favor of the mover. Csaszar v. Nat'l Cas. Co., et al., 14-1273 (La.App. 3 Cir. 11/4/15), 177 So.3d 807, writ denied, 15-2221 (La. 1/25/16), 185 So.3d 752.

         Motion To Strike Ms. Martin's Writ Application

         In his opposition to the October 12, 2017 writ filed on behalf of the employee defendant Marissa Martin by her counsel Amanda Clark, Mr. Zaunbrecher, the Estate of Leo David, and Leo David's insurer, Liberty Mutual, (hereafter Respondents), argue that the writ filed on behalf of Ms. Martin should be stricken from the record based on the signing of an October 5, 2017 motion to substitute counsel of record for Ms. Martin submitted by Charles A. Cerise, Jr. to the trial court making him counsel of record for Ms. Martin.

         In her reply to this court, Ms. Clark clearly states that she had full authority from Ms. Martin to appear as her appellate counsel when she filed a notice of intent to seek supervisory writs on behalf of Ms. Martin and the other employee defendants on September 27, 2017, and to file the initial writ application on October 12, 2017. Further, Ms. Clark urges that a party may engage separate appellate and trial counsel, which she indicates is the case in this litigation.[2] Respondents cite no statutory authority or jurisprudence to support their request to strike Ms. Martin's writ based on Ms. Clark's appearance as appellate counsel. There is no evidence in the record before us that Ms. Clark was not authorized to appear as appellant counsel for Ms. Martin and file this writ on her behalf. We deny Respondents' motion to strike Ms. Martin's writ filed by Ms. Clark.

         Motion To Strike The Affidavit of Ms. Shirley Rachal/ Written Stipulation

         On October 20, 2017, Respondents filed a brief in opposition to the defendants' writ with this court and attached new evidence that was not filed with the lower court in opposition to the summary judgment, namely Exhibit D, the Affidavit of Shirley Rachal, dated October 18, 2017, and Exhibit I, a "Written Stipulation, " also dated October 18, 2017. The Exhibit I stipulation pertained to insurance coverage for the acts of the employee defendants.[3]

         On October 24, 2017, the employee defendants filed a motion to strike the October 18, 2017 affidavit of Shirley Rachal as well as the written stipulation pertaining to insurance coverage. Neither exhibit was offered or introduced into the record in the lower court in opposition to the employee defendants' motion for summary judgment.

         In their motion to strike, the employee defendants stated:

In accordance with the Uniform Rules of Court, Defendants submitted a copy of the entire trial court record with their Writ Application, including Plaintiff's opposition to the summary judgment and all exhibits submitted therewith to the district court and a copy of the transcript of the hearing on Motion for Summary Judgment.

         The written stipulation and the affidavit of Ms. Rachal are both dated October 18, 2017. The hearing on the employee defendants' motion for summary judgment had already been heard on September 26, 2017. Therefore, Exhibit D, the Affidavit, and Exhibit I, the Written Stipulation, could not have been properly introduced into evidence in opposition to the employee defendants' motion for summary judgment and could not have been considered by the trial court in its denial of the employee defendants' motion for summary judgment.

         The Louisiana Supreme Court in Denoux v. Vessel Mgmt. Servs., Inc., 07-2143 (La. 5/21/08), 983 So.2d 84, 88 (citations omitted) addressed this same issue:

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered on appeal.
Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.

         In Harris v. Aetna Ins. Co., 509 So.2d 486, 489 (La.App. 3 Cir. 1987), a panel of our court stated: "[T]his court will only review issues which have been submitted to the trial court and raised in specifications or assignments of error, unless the interest of justice clearly requires otherwise. Rule 1-3, Uniform Rules, Courts of Appeal." Accordingly, this court's examination of these two exhibits is beyond the scope of this writ application, and the motion to strike filed on behalf of the employee defendants is hereby granted.

         ON THE MERITS

         Standard of Review

         Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "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).

         Louisiana Code of Civil Procedure Article 966(D)(1)(2) further provides:

(1) 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.
(2) The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.

         This court's supervisory jurisdiction may also be exercised to reverse a trial court's denial of a motion for summary judgment and to enter summary judgment in favor of the mover. Csaszar, 177 So.3d 807.

         In Roy v. Kyrles, Inc., 07-1605, p. 4 (La.App. 3 Cir. 5/14/08), 983 So.2d 975, 978, a panel of our court held that the legislature further clarified the burden of proof in enacting La.Code Civ.P. art. 966(C)(2) (now 966(D)(1)(2)) and stated:

This amendment parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The amended article places the initial burden of proof on the mover of the motion for summary judgment. If the mover meets this initial burden, the burden of proof then shifts to the nonmoving party that has the burden of proof on this particular issue at trial. This nonmoving party then must put forth evidence that shows he or she will be able to meet that burden at trial. If the nonmoving party cannot, then the motion for summary judgment should be granted. Marist & Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.8 (1999).

         Oral argument was requested and granted in accordance with La. Code Civ.P. art. 966(H).

         Statutory Immunity Pursuant to Louisiana Revised Statutes 9:2800.1

         The employee defendants argue they are entitled to summary judgment based on statutory immunity granted under La.R.S. 9:2800.1 (emphasis added) (footnotes omitted), which provides in pertinent part:

A. The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an ...

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