Honor v. Tangipahoa Parish School Board

136 So. 3d 31, 2013 La.App. 1 Cir. 0298, 2013 WL 5872038, 2013 La. App. LEXIS 2246
CourtLouisiana Court of Appeal
DecidedNovember 1, 2013
DocketNo. 2013 CA 0298
StatusPublished
Cited by8 cases

This text of 136 So. 3d 31 (Honor v. Tangipahoa Parish School Board) 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
Honor v. Tangipahoa Parish School Board, 136 So. 3d 31, 2013 La.App. 1 Cir. 0298, 2013 WL 5872038, 2013 La. App. LEXIS 2246 (La. Ct. App. 2013).

Opinion

THERIOT, J.

|2In this suit for damages arising from a battery committed by a co-employee, plaintiff appeals a summary judgment in favor of defendants, dismissing her claims against all defendants with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 13, 2008, plaintiff, Linda Honor, was employed by the Tangipahoa Parish School Board as a custodian at Hammond High School. On that date, another custodian at the school, Larry Jackson, approached Ms. Honor’s custodial cart and began touching her personal custodial equipment. When Ms. Honor questioned Mr. Jackson about going through her cart, he threw her up against a wall and hit her in the face. After reporting the incident in the school office, the police officer on duty at the school escorted Ms. Honor to the hospital, where she was treated for her injuries.

On April 13, 2009, Ms. Honor filed a petition for damages allegedly sustained in the incident. Named as defendants in Ms. Honor’s petition were the Tangipahoa Parish School Board, Larry Jackson, XYZ Insurance Company, Tangipahoa Parish School Board Superintendent Mark Kolwe, and Hammond High School Principal Carmen Moore. The petition alleges that the [34]*34School Board, Superintendent Kolwe, and Principal Moore are all vicariously liable for Jackson’s tortious conduct under the doctrine of respondeat superior because prior complaints had been made by employees about Jackson’s behavior and Ms. Honor had warned Principal Moore that Jackson’s rage appeared to be escalating and that she feared he was “going to explode,” but no action was taken.

The defendants filed a motion for summary judgment alleging that Superintendent Kolwe and Principal Moore were not Mr. Jackson’s employers and thus could not be liable under respondeat superior, and that |sMs. Honor’s exclusive remedy against the School Board, as her employer, is in workers’ compensation, since the School Board did not participate in any intentional act which caused Ms. Honor’s injuries. Summary judgment was granted by the trial court, dismissing Ms. Honor’s claims against the School Board, Superintendent Kolwe, and Principal Moore. We reversed the summary judgment on appeal, holding that the defendants failed to properly support their motion for summary judgment as required by La. C.C.P. arts. 966(C)(2) and 967(B) in order to shift the burden to the non-moving party. In moving for summary judgment, the defendants offered only the self-serving argument of their memorandum to meet the initial burden of proof. Finding that to grant summary judgment under such circumstances would negate the requirements of articles 966(C)(2) and 967(B), we reversed the summary judgment. Honor v. Tangipahoa Parish School Board, 10-1822, 2011 WL 2976884, (La.App. 1 Cir. 6/10/11) (unpublished).

The defendants filed another motion for summary judgment on October 2, 2012. In support of this motion for summary judgment, defendants offered the plaintiffs petition, affidavits of Superintendent Kolwe and Principal Moore, and excerpts from Ms. Honor’s deposition.

Ms. Honor filed an Exception of Res Judicata, asserting that the defendants’ October 2, 2012 motion for summary judgment should be barred by the doctrine of res judicata because it raised the same issues that were before the court in their first motion for summary judgment, which was reversed by the appellate court. Ms. Honor also opposed the motion for summary judgment.

After a hearing, the court denied Ms. Honor’s exception of res judicata and granted summary judgment dismissing all three defendants. Ms. Honor appealed.

LDISCUSSION

Ms. Honor argues on appeal that because this court reversed the first summary judgment granted by the trial court in favor of defendants and the defendants’ second motion for summary judgment asserts no new facts or issues, the second motion should be barred by the doctrine of res judicata. We disagree. It is well settled that the denial of an initial motion for summary judgment does not bar a second motion for summary judgment. Saizan v. Pointe Coupee Parish School Bd., 10-0757, p. 8 (La.App. 1 Cir. 10/29/10), 49 So.3d 559, 563-64, writ denied, 2010-2599 (La.1/14/11), 52 So.3d 905. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time up to final judgment. An interlocutory judgment cannot serve as the basis for a plea of res judicata Id. Furthermore, the jurisprudence specifically allows a trial court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. Id. This assignment of error is without merit.

A motion for summary judgment is a procedural device used when there is no [35]*35genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 06-368, p. 3 (La.11/29/06), 950 So.2d 544, 546. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Costello v. Hardy, 03-1146, p. 8 (La.1/21/04), 864 So.2d 129, 137. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law. See La. C.C.P. art. 966(B).

IsThe burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’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 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 he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Pugh v. St. Tammany Parish School Bd., 07-1856, p. 2 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113; see also La. C.C.P. art. 967(B).

As movants, the defendants had the initial burden of proof for purposes of seeking summary judgment pursuant to La. C.C.P. art. 966(C)(2). However, as defendants in this matter, they would not bear the burden of proof at trial; therefore, the defendants were only required to point out to the court that there was an absence of factual support for one or more elements essential to Ms. Honor’s action.

Louisiana Civil Code article 2320 provides that a master is answerable for the damage occasioned by his servants, in the exercise of the functions in which they are employed. In their motion for summary judgment, Superintendent Kolwe and Principal Moore pointed to an absence of factual support for an essential element of Ms. Honor’s respondeat superior claims — [that,; they were Mr. Jackson’s employer. The defendants offered the affidavits of Superintendent Kolwe and Principal Moore, which both state that they are not Mr. Jackson’s employer.

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136 So. 3d 31, 2013 La.App. 1 Cir. 0298, 2013 WL 5872038, 2013 La. App. LEXIS 2246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/honor-v-tangipahoa-parish-school-board-lactapp-2013.