DONALD HOGAN, JR.
ANDREA WILLIAMS AND KENNETH LEMIEUX
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.
COUNSEL FOR DEFENDANT/RELATOR, KENNETH LEMIEUX Bryce G.
COUNSEL FOR DEFENDANT/RELATOR, ANDREA WILLIAMS J. Forester
Jackson, Mary Bubbett Jackson
composed of Judges Fredericka Homberg Wicker, Marc E.
Johnson, and John J. Molaison, Jr.
E. JOHNSON JUDGE
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.
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. 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. 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.
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.
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
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.
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.
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.
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 ...