STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-1404
GILBERT DOUGLASS
VERSUS
DR. JAMES H. EASTON & THE LAFAYETTE PARISH SCHOOL BOARD
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 200443605 HONORABLE DURWOOD CONQUE, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter, Judges.
REVERSED AND RENDERED.
Anthony J. Fontana 210 N. Washington St. Abbeville, LA 70510 Counsel for Plaintiff-Appellant: Gilbert Douglass
L. Lane Roy Dawn L. Morris Tori E. Sherer 102 Versailles Blvd, Ste. 400 Lafayette, LA 70509 Counsel for Defendant-Appellee: Lafayette Parish School Board Painter, Judge.
The Plaintiff, Gilbert Douglass, appeals the trial court’s judgment dismissing
his breach of contract suit pursuant to a motion for summary judgment filed by the
Defendant, Lafayette Parish School Board (School Board). Finding that the School
Board has not carried its burden under La.Code Civ. P. arts. 966 and 967, we reverse
the judgment and remand to the trial court.
FACTS AND PROCEDURAL HISTORY
In May 1999, after serving as assistant principal at Carencro Middle School for
several years, Douglass was appointed principal at that school, and he and the School
Board entered an employment contract for a period of two years, beginning August
5, 1999 and ending August 4, 2001. The contract was renewed under the same terms
for a period beginning August 4, 2001 and ending August 3, 2005. Effective July 21,
2003, Douglass was transferred to the position of assistant principal at Comeaux High
School at the same compensation he had received as Principal. On July 23, 2004, he
filed this suit for breach of the contract executed in connection with his retention as
principal of Carencro Middle School. On September 21, 2005, he signed a two year
contract for the position of assistant principal of Comeaux High School.
The School Board filed a motion for summary judgment asserting that no
material issue of fact remained because Douglass was not terminated or demoted, that
because a new contract was negotiated, Douglass was not entitled to written charges,
notice, or a hearing, that Douglass acquiesced to his new assignment by signing a new
contract and cannot now complain of his decision, and that, by law, Douglass is not
entitled to non-pecuniary damages. The School Board supported its motion with
copies of the employment contracts and an affidavit of Ramona Bernard, Director of
1 Human Resources for the School Board, certifying the correctness of the copies of the
contracts. Douglass filed a memorandum in opposition to the motion for summary
judgment asserting that by its terms the contract required that he be removed only for
incompetence, inefficiency, or failure to fulfill the terms and performance objectives
of the contract and mandated that he be transferred only to “another position of equal
pay, rand and responsibility.” He argued that his transfer to an assistant principal
position was, in fact, a termination and, as such, required written notice and a hearing
pursuant to La.R.S. 17:444. Douglass asserted in the memorandum that he did not
sign the contract for the assistant principal position voluntarily, and, as a result, did
not thereby acquiesce in his transfer. Douglass did not, however, submit affidavits,
deposition testimony, or other documentation in support of his opposition
memorandum.
After a hearing, the trial court granted the motion for summary judgment and
rendered judgment dismissing Douglass’ claims against the School Board. Douglass
appeals.
DISCUSSION
Summary Judgment
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98), 707 So.2d 459. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential
2 elements of the adverse party's claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense; thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See, La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.
Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587.
Sidwell v. Horseshoe Entm't Ltd. P'ship, 35,718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811
So.2d 229, 230-31, quoted in Semien v. EADS Aeroframe Services, LLC, 04-760, pp.
2-3 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17.
Douglass did not support his opposition to the motion for summary judgment
with depositions or affidavits.
An adverse party to a supported summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967.
Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.
In this case, Douglass asserted at the hearing that no affidavits were necessary
because the School Board was not entitled to judgment as a matter of law under the
terms of the contract. Because this case turns on the employment contract and
actions not in dispute, i.e., the signing of a contract for the position of Vice-Principal
at Comeaux High School, we will examine de novo the contentions of the School
3 Board to determine whether issues of fact remain and whether the School Board is
entitled to summary judgment as a matter of law.
Acquiescence
The School Board asserts that no question of fact remains but that Douglass
acquiesced in his transfer by signing a new contract for the position of assistant
principal of Comeaux High School in September 2005. The School Board argues that
by so doing Douglass lost his claim for breach of contract including failure to comply
with the notice and hearing requirements of the contract. It is apparently the position
of the School Board that the contract for employment as assistant principal of
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-1404
GILBERT DOUGLASS
VERSUS
DR. JAMES H. EASTON & THE LAFAYETTE PARISH SCHOOL BOARD
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 200443605 HONORABLE DURWOOD CONQUE, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter, Judges.
REVERSED AND RENDERED.
Anthony J. Fontana 210 N. Washington St. Abbeville, LA 70510 Counsel for Plaintiff-Appellant: Gilbert Douglass
L. Lane Roy Dawn L. Morris Tori E. Sherer 102 Versailles Blvd, Ste. 400 Lafayette, LA 70509 Counsel for Defendant-Appellee: Lafayette Parish School Board Painter, Judge.
The Plaintiff, Gilbert Douglass, appeals the trial court’s judgment dismissing
his breach of contract suit pursuant to a motion for summary judgment filed by the
Defendant, Lafayette Parish School Board (School Board). Finding that the School
Board has not carried its burden under La.Code Civ. P. arts. 966 and 967, we reverse
the judgment and remand to the trial court.
FACTS AND PROCEDURAL HISTORY
In May 1999, after serving as assistant principal at Carencro Middle School for
several years, Douglass was appointed principal at that school, and he and the School
Board entered an employment contract for a period of two years, beginning August
5, 1999 and ending August 4, 2001. The contract was renewed under the same terms
for a period beginning August 4, 2001 and ending August 3, 2005. Effective July 21,
2003, Douglass was transferred to the position of assistant principal at Comeaux High
School at the same compensation he had received as Principal. On July 23, 2004, he
filed this suit for breach of the contract executed in connection with his retention as
principal of Carencro Middle School. On September 21, 2005, he signed a two year
contract for the position of assistant principal of Comeaux High School.
The School Board filed a motion for summary judgment asserting that no
material issue of fact remained because Douglass was not terminated or demoted, that
because a new contract was negotiated, Douglass was not entitled to written charges,
notice, or a hearing, that Douglass acquiesced to his new assignment by signing a new
contract and cannot now complain of his decision, and that, by law, Douglass is not
entitled to non-pecuniary damages. The School Board supported its motion with
copies of the employment contracts and an affidavit of Ramona Bernard, Director of
1 Human Resources for the School Board, certifying the correctness of the copies of the
contracts. Douglass filed a memorandum in opposition to the motion for summary
judgment asserting that by its terms the contract required that he be removed only for
incompetence, inefficiency, or failure to fulfill the terms and performance objectives
of the contract and mandated that he be transferred only to “another position of equal
pay, rand and responsibility.” He argued that his transfer to an assistant principal
position was, in fact, a termination and, as such, required written notice and a hearing
pursuant to La.R.S. 17:444. Douglass asserted in the memorandum that he did not
sign the contract for the assistant principal position voluntarily, and, as a result, did
not thereby acquiesce in his transfer. Douglass did not, however, submit affidavits,
deposition testimony, or other documentation in support of his opposition
memorandum.
After a hearing, the trial court granted the motion for summary judgment and
rendered judgment dismissing Douglass’ claims against the School Board. Douglass
appeals.
DISCUSSION
Summary Judgment
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d 482. The motion should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98), 707 So.2d 459. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential
2 elements of the adverse party's claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense; thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See, La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.
Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587.
Sidwell v. Horseshoe Entm't Ltd. P'ship, 35,718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811
So.2d 229, 230-31, quoted in Semien v. EADS Aeroframe Services, LLC, 04-760, pp.
2-3 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17.
Douglass did not support his opposition to the motion for summary judgment
with depositions or affidavits.
An adverse party to a supported summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967.
Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.
In this case, Douglass asserted at the hearing that no affidavits were necessary
because the School Board was not entitled to judgment as a matter of law under the
terms of the contract. Because this case turns on the employment contract and
actions not in dispute, i.e., the signing of a contract for the position of Vice-Principal
at Comeaux High School, we will examine de novo the contentions of the School
3 Board to determine whether issues of fact remain and whether the School Board is
entitled to summary judgment as a matter of law.
Acquiescence
The School Board asserts that no question of fact remains but that Douglass
acquiesced in his transfer by signing a new contract for the position of assistant
principal of Comeaux High School in September 2005. The School Board argues that
by so doing Douglass lost his claim for breach of contract including failure to comply
with the notice and hearing requirements of the contract. It is apparently the position
of the School Board that the contract for employment as assistant principal of
Comeaux High School, which contains neither reservation of rights nor indication
that it was signed under protest and to which Douglass’ signature is affixed, is prima
facie evidence of Douglass’ acquiescence in the transfer. The School Board asserts
that acquiescence in the action of the School Board would ordinarily conclude
Douglass’ right to proceed for breach of contract. Normally, by signing the contract
of employment, Douglass accepted the school board’s terms and the position of
assistant-principal. See Smith v. Evangeline Parish School Bd., 95-284 (La.App. 3
Cir. 10/4/95). Douglass asserted in his opposition to the motion for summary
judgment that he was coerced into signing the contract because he could not continue
to work and collect his salary if he did not sign. However, if School Board had
carried its burden of showing an acquiescence, the burden would have shifted to
Douglass to come forth with evidence in the form of affidavits or discovery responses
raise an issue of fact with regard to whether he was coerced into signing the contract,
that he reserved his right to pursue his breach of contract claim, or that he signed
under protest. He could not rest on the allegations made in his pleadings or
4 memoranda. See La.Code Civ.P. arts. 966 & 967. However, it is clear on the face
of the contracts that Douglass only signed a new contract for the position of vice-
principal after the term of his contract for the position of principal had expired. The
School Board does not cite, and we cannot find, any jurisprudence which would
suggest that a party who sues for breach of an employment contract cannot, without
waiving his rights, sign a new contract with his employer after the expiration of the
term of the contract sued upon. Therefore, we conclude that the School Board is not
entitled to summary judgment as a matter of law based on acquiescence.
Non-pecuniary Damages
Citing jurisprudence to the effect that damages for non-pecuniary losses are not
available for breach of an employment contract, the School Board asserts that it is
entitled to summary judgment because no question of fact remains but that Douglass
asked only for damages arising from non-pecuniary losses.
The School Board is correct in its assersion that non-pecuniary losses cannot
be recovered for breach of a contract not intended to gratify a non-pecuniary interest
unless “‘the obligor knew, or should have known, that his failure to perform would
cause that kind of loss.’ La.Civ.Code art.1998.” Richard v. Gary Matte Builders,
Inc., 06-0808, p. __ (La.App. 3 Cir. 11/8/06), ___ So.2d ___, ___.
Douglass, in his petition for damages, alleges the following damages:
a. Mental anguish, humiliation and embarrassment;
b. Damages to his professional reputation and loss of esteem among the public;
c. Damage to future promotions and ability to obtain similar or better employment in the Parish or else where (sic);
d. Change of job requiring a change of duties, loss of prestige, loss of opportunity to direct educational direction of school;
5 e. Loss of years of experience as a principal which also affect promotional opportunities.
Reviewing these allegations, we cannot say that they represent only non-
pecuniary interests, in that a question remains as to whether with loss of promotion
Douglass also suffered loss of concomitant salary increases. Nothing in the
supporting documents filed by the School Board deals with this question. The School
Board merely attached a copy of Douglass’s petition for damages to its memorandum
in support of its motion for summary judgment. Accordingly, we cannot say that the
School Board has shown that no question of fact remains in this regard. Therefore,
we find that the School Board is not entitled to summary judgment on this basis.
CONCLUSION
Finding that the School Board has not shown that it is entitled to summary
judgment as provided by La.Code Civ. P. arts. 966 and 967, we reverse the trial
court’s grant of the School Board’s motion for summary judgment. This matter is
remanded to the trial court for further proceedings. Costs of this appeal are to be paid
by the Lafayette Parish School Board.