ZACHARY ZAUNBRECHER, INDIVIDUALLY AND ON BEHALF OF HIS DECEASED FATHER, MICHAEL BLAKE ZAUNBRECHER
MARISSA MARTIN, JEREMY PONTHIEUX, AND NATHAN PONTHIER
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
COUNSEL FOR DEFENDANT/APPLICANT: Marissa Martin Charles A.
Cerise, Jr. Edwin C. Laizer Kellen J. Matthews Louis C.
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
composed of Sylvia R. Cooks, John E. Conery, and Van H.
E. CONERY JUDGE
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
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.
OF THE CASE
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. 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.
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.
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.
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
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.
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.
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."
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
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.
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.
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.
To Strike Ms. Martin's Writ Application
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.
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. 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.
To Strike The Affidavit of Ms. Shirley Rachal/ Written
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
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.
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.
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.
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
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.
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).
Code of Civil Procedure Article 966(D)(1)(2) further
(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.
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.
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
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).
argument was requested and granted in accordance with La.
Code Civ.P. art. 966(H).
Immunity Pursuant to Louisiana Revised Statutes 9:2800.1
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 ...