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Hogan v. Williams

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2019

DONALD HOGAN, JR.
v.
ANDREA WILLIAMS AND KENNETH LEMIEUX

          ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 747-249, DIVISION "G" HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/RESPONDENT, DONALD HOGAN, JR. John-Michael Lawrence

          COUNSEL FOR DEFENDANT/RELATOR, KENNETH LEMIEUX Bryce G. Murray

          COUNSEL FOR DEFENDANT/RELATOR, ANDREA WILLIAMS J. Forester Jackson, Mary Bubbett Jackson

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.

          MARC E. JOHNSON JUDGE

         Defendants/Relators, Andrea Williams and Kenneth Lemieux, seek this Court's supervisory review of the trial court's October 18, 2018 denial of their motion for summary judgment. After de novo review, we find that Defendants are entitled to summary judgment as a matter of law. Accordingly, we reverse the trial court's ruling and grant summary judgment in favor of Defendants, dismissing Plaintiff's claims against Defendants with prejudice.[1]

         On February 27, 2015, Plaintiff, Donald Hogan, filed a "Petition for Damages for Libel, Slander, Malicious Prosecution" against Defendants in connection with a 2012 federal discrimination lawsuit filed by Defendants against Mr. Hogan and other parties.[2] In his petition, Mr. Hogan alleged that Defendants filed a civil rights action against him in federal court while he was the Assistant Director of the Jefferson Parish Streets Department. He asserted that all allegations made against him in the federal lawsuit were false and retaliatory.[3] He averred Defendants communicated the factual allegations of the federal complaint to third parties and intentionally damaged his reputation. Mr. Hogan further alleged that he denied all allegations against him in the federal lawsuit and that he was dismissed from the federal lawsuit without paying any damages to Defendants.

         Defendants filed a motion for summary judgment on May 23, 2018, claiming that Mr. Hogan could not establish a prima facie case of malicious prosecution because he could not show there was a bona fide conclusion of the underlying federal litigation in his favor, which is an essential element in a cause of action for malicious prosecution. Defendants maintained that the underlying federal litigation had been settled between the parties, resulting in the dismissal of the federal lawsuit on January 23, 2015. Relying on Ulmer v. Frisard, 06-377 (La.App. 5 Cir. 10/31/06); 945 So.2d 85, Defendants argued that settlement of the underlying lawsuit is not a bona fide termination of the underlying litigation in favor of the present plaintiff (Mr. Hogan) and, therefore, there could not be, as a matter of law, a claim for malicious prosecution.[4]

         Defendants also asserted that Mr. Hogan could not establish a claim for defamation/libel/slander because (1) the underlying federal lawsuit had been settled - thus he could not show the statements had been proven false in that litigation, and (2) he could not establish the statements made in the federal complaint were made with actual malice and without probable cause - an essential element to a defamation/libel/slander claim.

         Mr. Hogan subsequently filed a cross-motion for summary judgment in response to and in opposition to Defendants' motion for summary judgment. He argued that the settlement reached in the federal lawsuit was between Defendants and Jefferson Parish and did not involve him. Mr. Hogan maintained that he (1) did not agree to settle the federal lawsuit, (2) did not pay any money to settle, and (3) did not execute any settlement documents. He asserted that Defendants agreed to voluntarily dismiss him based on their settlement with Jefferson Parish and that he specifically reserved his right to bring the instant claim. Thus, Mr. Hogan averred that Defendants' arguments based on "settlement" of the federal lawsuit were misplaced. Mr. Hogan further argued that there was a total absence of any evidence supporting Defendants' federal suit and, thus, Defendants' claims were libelous and the prosecution was malicious. As such, he sought summary judgment in his favor on the merits of his current lawsuit.

         On October 1, 2018, a hearing was held on both Defendants' motion for summary judgment and Mr. Hogan's cross-motion for summary judgment. The trial court denied both Defendants' motion for summary judgment and Mr. Hogan's cross-motion for summary judgment and signed a written judgment to that effect on October 18, 2018. Defendants filed the instant writ application seeking review of the denial of their summary judgment.[5]

         On supervisory review or on appeal, our review of a ruling granting or denying summary judgment is de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Breaux v. Fresh Start Properties, L.L.C., 11-262 (La.App. 5 Cir. 11/29/11); 78 So.3d 849, 852. Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue as to material fact, and whether the mover is entitled to judgment as a matter of law. Id.

         A motion for summary judgment shall be granted if 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. C.C.P. art. 966(A)(3). The party bringing the motion bears the burden of proof; however, if the mover will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the burden is on the non-moving party to produce factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is ...


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