Assamad v. Percy Square and Diamond Foods

993 So. 2d 644, 2007 La.App. 1 Cir. 1229, 2008 La. App. LEXIS 1066, 2008 WL 2902597
CourtLouisiana Court of Appeal
DecidedJuly 29, 2008
Docket2007 CA 1229
StatusPublished
Cited by10 cases

This text of 993 So. 2d 644 (Assamad v. Percy Square and Diamond Foods) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Assamad v. Percy Square and Diamond Foods, 993 So. 2d 644, 2007 La.App. 1 Cir. 1229, 2008 La. App. LEXIS 1066, 2008 WL 2902597 (La. Ct. App. 2008).

Opinion

993 So.2d 644 (2008)

Sheila ASSAMAD
v.
PERCY SQUARE AND DIAMOND FOODS, L.L.C.

No. 2007 CA 1229.

Court of Appeal of Louisiana, First Circuit.

July 29, 2008.

*645 Chad F. Reynolds, Baton Rouge, LA, for Plaintiff-Appellee, Sheila Assamad.

Daniel J. Balhoff, Perry, Atkinson, Balhoff, Mengis & Bums, L.L.C., Baton Rouge, LA, for Defendant-Appellant, Diamond Foods, L.L.C.

Before PARRO, KUHN, and DOWNING, JJ.

PARRO, J.

Diamond Foods, L.L.C. (Diamond) appeals a confirmation of default judgment taken against it by Sheila Assamad (Assamad) in a suit for sexual harassment in the workplace. For the reasons that follow, we vacate the trial court's judgment and *646 remand the matter for further proceedings.

Factual and Procedural Background

On July 20, 2000, attorney Charles L. Dirks, III (Dirks) filed a suit for damages on behalf of Assamad against Percy Square (Square) and Diamond based on allegations of sexual harassment. Diamond, a limited liability company domiciled and doing business in the parish of East Baton Rouge, owned a Wendy's restaurant at which Assamad and Square were employed. The petition was personally served on Diamond on July 25, 2000, through its agent for service of legal process, Frances M. Snyder at 450 Laurel Street, Suite 1000, Baton Rouge, Louisiana 70801.

On June 2, 2003, attorney Chad F. Reynolds (Reynolds) filed a motion to enroll as counsel of record for Assamad. The motion failed to indicate whether notice had been given to Diamond (the opposing party) or Dirks (Assamad's counsel of record). Based on the fact that Diamond failed to appear or file an answer, Reynolds moved for entry of a preliminary default on July 10, 2003, on Assamad's behalf, which was entered on July 15, 2003.

Subsequently, on August 18, 2006, based on the testimonial and documentary evidence offered, the default judgment was confirmed in favor of Assamad, ordering Diamond to pay $100,000 in general damages, $10,920 in past lost wages, $400 in medical expenses, $10,000 in attorney fees, together with legal interest from the date of judicial demand until paid, and costs. On December 11, 2006, Diamond filed a motion for new trial, asserting that the judgment was unjust and contrary to the law and the evidence, pointing particularly to an agreement between Donald L. Feinstein, who was Diamond's chairman of the board, and Dirks in which Dirks allegedly promised to give notice to Diamond before taking any adverse action against Diamond. Following a hearing, the trial court found that there were no peremptory grounds mandating the granting of a new trial, and it declined to exercise its discretion in ordering a new trial. Subsequently, Diamond appealed the August 18, 2006 confirmation of default judgment, contending that the trial court erred in the following respects:

1. granting the motion by Reynolds to enroll as counsel,
2. confirming the default judgment,
3. finding Diamond liable,
4. failing to apportion fault between Diamond and Square in light of the legislature's abolishment of solidary liability as to joint tortfeasors,
5. awarding medical expenses,
6. awarding excessive general damages, and
7. denying its motion for new trial based on the nullity of the confirmation of default judgment

Sufficiency of the Evidence

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. LSA-C.C.P. art. 1702. The plaintiff has the burden of establishing a prima facie case by proving with competent evidence the essential elements of his claim as fully as if each of the allegations of the petition had been specifically denied. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993). The evidence must be such that the plaintiff probably would prevail after full trial on the merits. Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989); Crescent City Const., Inc. v. Camper, 03-1727 (La.App. 1st Cir.12/30/04), 898 So.2d 408, 413. To obtain reversal of a confirmation of default judgment, the defendant must overcome *647 the presumption that the judgment was rendered upon sufficient evidence and that it is legally correct. However, this presumption does not apply where the record contains a note of evidence introduced or a transcript of the proceedings in the trial court. Grevemberg v. G.P.A. Strategic Forecasting Group, Inc., 06-0766 (La.App. 1st Cir.2/9/07), 959 So.2d 914, 917-18.

When a demand is based on a delictual obligation, the testimony of the plaintiff, together with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. LSA-C.C.P. art. 1702(B)(2). When the demand is based on a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. LSA-C.C.P. art. 1702(D). Thus, we must examine the transcript and other documents in the record to determine whether Assamad presented sufficient competent evidence to establish a prima facie case as to the elements of liability and damage, unaided by any presumption in this case. See Murray v. Griffin, 94-0036 (La.App. 3rd Cir.6/1/94), 640 So.2d 641, 644; see also LSA-C.C.P. art. 1702; Sessions & Fishman, 616 So.2d at 1258.

In her petition, Assamad alleged that in May 1999, Square, her co-worker, repeatedly touched and grabbed her buttocks and breast in a sexual manner without her consent. Assamad asserted that Square also made sexually suggestive comments to her regarding his penis size and sexual acts he would like to perform with her. She urged that, as a result of this sexual harassment to which she objected, she suffered physical and emotional pain and suffering, anxiety, personal embarrassment, humiliation, and ridicule. According to her petition, Assamad's supervisor, Cassandra Jones, knew or should have known that Assamad was being sexually harassed by Square as a result of a report made to her by Assamad on July 19, 1999. Subsequently, Square's sexually harassing behavior continued, and he was not disciplined by Diamond's supervisory personnel. These actions and inactions allegedly forced her to resign from her employment on August 15, 1999. Based on these allegations of fact, Assamad urged that she was subjected to a hostile work environment for which she has a claim under LSA-R.S. 23:301 et seq., in particular section 332. She further asserted that Diamond was vicariously liable for Square's actions and for the negligent hiring and retention of Square.

Concerning intentional discrimination in employment, LSA-R.S. 23:332(A) of the Louisiana Employment Discrimination Law (LEDL) provides:

It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual's race, color, religion, sex, or national origin.

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Bluebook (online)
993 So. 2d 644, 2007 La.App. 1 Cir. 1229, 2008 La. App. LEXIS 1066, 2008 WL 2902597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/assamad-v-percy-square-and-diamond-foods-lactapp-2008.