NOT FOR PUBLICATION STATE OF LOUISIANA
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-1318
JAMES BOWLIN
VERSUS
RUSSELL TAYLOR, ET AL
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, DOCKET NO. 240,118 HONORABLE HARRY F. RANDOW, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Chief Judge Ulysses Gene Thibodeaux, and Judges Sylvia R. Cooks and Billy H. Ezell
REVERSED AND REMANDED.
Howell D. Jones, IV Law Firm of Howell D. Jones, IV P.O. Box 14558 Alexandria, LA 71315 (318) 442-1515 COUNSEL FOR PLAINTIFF/APPELLANT: James Bowlin
Randall B. Keiser D. Heath Trahan Keiser Law Firm, P.L.C. P.O. Box 12358 Alexandria, LA 71315 (318) 443-6168 COUNSEL FOR DEFENDANTS/APPELLEES: City of Pineville and Donald Weatherford COOKS, JUDGE.
FACTS AND PROCEDURAL HISTORY
James Bowlin (Bowlin) sued Russell Taylor (Taylor), the City of Pineville
(Pineville), Terrell Paul and/or Donald Weatherford in their capacity as Chief of
Police of the Pineville City Police Department (Chief), and Officer “John Doe.”
Bowlin alleges Taylor defamed his good name and business reputation by
publishing information about Bowlin allegedly improperly obtained from the
Louisiana Justice Network‟s (Network) confidential database. Bowlin maintains
the information included his entire police record of arrests, charges, and
convictions as well as personal information such as his social security number, date
of birth, contact information, and driver‟s license number. He alleges that only
some of the information wrongfully obtained is also public record. Bowlin is a
small business owner in the Pineville area. He alleges that Taylor has defamed his
good name and business reputation and has invaded his right to privacy.
Bowlin and Taylor have a history of ill will which began when Bowlin
started dating Taylor‟s ex-wife. Bowlin alleges the confidential information was
obtained for, and provided to Taylor, by an unidentified member of the Pineville
City Police Department using police computers to access the Network‟s database.
Bowlin alleges he learned that an as-yet unidentified member of the Pineville City
Police Department logged onto the secure website, obtained confidential
information about Bowlin, and provided that information to Taylor. Bowlin
identifies his source of information at the Network as Detective Shelly Scott
(Scott), an employee of the Louisiana State Police. Bowlin alleges Scott informed
him that she conducted an internal investigation into the inappropriate utilization of
the database by an employee of the Pineville City Police Department who obtained
the database information about Bowlin. Bowlin asserts that Scott cannot provide
any information on the matter until she is properly subpoenaed in a lawsuit. Taylor maintains that the information mysteriously appeared in his mailbox one day from
an unknown source.
Along with filing the lawsuit, Bowlin issued a subpoena to obtain Scott‟s
file. Approximately four months after suit was filed, and the subpoena issued, but
before the state police responded to the subpoena, Pineville and the Chief filed a
motion for summary judgment asserting Bowlin cannot prove his case. They assert
there are no genuine issues of material fact in dispute. Pineville and the Chief
assert that Bowlin‟s responses to discovery and his testimony at the hearing
demonstrate that he does not know the identity of the member of the police
department who allegedly improperly obtained the information and provided it to
Taylor, and he therefore cannot prove his allegations. The trial court granted
summary judgment dismissing Plaintiff‟s claims against Pineville, Terrell Paul,
Donald Weatherford, and “John Doe” with prejudice. The trial court certified the
judgment as a final and appealable judgment. Bowlin appeals asserting the trial
court erred in granting summary judgment prematurely and in finding there are no
genuine issues of fact in dispute.
LAW AND DISCUSSION
The basis for obtaining the dismissal of an action on summary judgment is
provided in La.Code Civ. P. art. 966. In pertinent part, La.Code Civ.P. art. 966(C)
(emphasis added) expressly provides “After adequate discovery or after a case is
set for trial, a motion which shows that there is no genuine issue as to material fact
and that the mover is entitled to judgment as a matter of law shall be granted.”
We review motions for summary judgment de novo to determine whether
the trial court‟s decision was appropriate. Ross v. Conoco, Inc., 02-299 (La.
10/15/02), 828 So.2d 546. After a review of the record, we find the trial court
erred in granting summary judgment. Bowlin was not accorded reasonable time to
conduct discovery. His subpoena to the Louisiana State Police was still
2 outstanding, and he had not yet been provided the information subpoenaed. This
was the only means of discovery available to Plaintiff to obtain the information
needed to proceed with his suit and further discovery. This information, known
only to Scott and the state police, is critical to Bowlin‟s case as to all Defendants,
especially “John Doe.” In a recent case, this court held that a party “ „must be
given a fair opportunity to present their case.‟” Simon v. Belaire, 11-442, p. 3
(La.App. 3 Cir. 10/5/11), 74 So.3d 1250, 1252, writ denied, 11-2454 (La.2/3/12)
__ So.3d__ (quoting Leak & Anderson LLP v. SIA Ins. Co. (Risk Retention Group),
Ltd., 03-1600, pp. 3-4 (La.App 4 Cir. 3/3/04), 868 SO.2d 967, 969. In Simon we
held:
After review, we find that the failure to allow Defendants to complete discovery, as set out in the trial court‟s discovery schedule, renders the motion for summary judgment premature.
Generally, a motion for summary judgment may only be granted “[a]fter adequate discovery or after a case is set for trial….” La.C.C.P. art. 966 (C)(1). Although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case. Doe [v. ABC Corporation], 00-1905 (La.App. 4 Cir. 6/27/01), 790 So.2d 136; Rumore v. Wamstad, 99-557, p. 7 (La.App. 5 Cir. 2/8/00), 751 So.2d 452, 456, citing Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908 (La.1986).
Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Group), Ltd., 03-1600, pp. 3-4 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, 969.
Id. at 1252. (alterations in original)
In Simon, suit was filed in May 2008 but the court did not set discovery
dates until September 2010. The plaintiffs filed their motion for summary
judgment on January 26, 2011, which was set for hearing on February 14, 2011.
The defendants in Simon moved for a continuance based on their lack of
representation, and, that as florists, the date for the hearing was their busiest day of
the year. The trial court denied the motion for continuance. The defendants hired
an attorney who re-urged the motion to continue and filed an opposition to the
3 motion for summary judgment, arguing he needed time to prepare a response to the
motion for summary judgment as no discovery had been accomplished. The trial
court denied a continuance, and on that same date granted the plaintiffs‟ motion for
summary judgment. This court reversed, finding the trial court‟s grant of summary
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NOT FOR PUBLICATION STATE OF LOUISIANA
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-1318
JAMES BOWLIN
VERSUS
RUSSELL TAYLOR, ET AL
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, DOCKET NO. 240,118 HONORABLE HARRY F. RANDOW, DISTRICT JUDGE **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Chief Judge Ulysses Gene Thibodeaux, and Judges Sylvia R. Cooks and Billy H. Ezell
REVERSED AND REMANDED.
Howell D. Jones, IV Law Firm of Howell D. Jones, IV P.O. Box 14558 Alexandria, LA 71315 (318) 442-1515 COUNSEL FOR PLAINTIFF/APPELLANT: James Bowlin
Randall B. Keiser D. Heath Trahan Keiser Law Firm, P.L.C. P.O. Box 12358 Alexandria, LA 71315 (318) 443-6168 COUNSEL FOR DEFENDANTS/APPELLEES: City of Pineville and Donald Weatherford COOKS, JUDGE.
FACTS AND PROCEDURAL HISTORY
James Bowlin (Bowlin) sued Russell Taylor (Taylor), the City of Pineville
(Pineville), Terrell Paul and/or Donald Weatherford in their capacity as Chief of
Police of the Pineville City Police Department (Chief), and Officer “John Doe.”
Bowlin alleges Taylor defamed his good name and business reputation by
publishing information about Bowlin allegedly improperly obtained from the
Louisiana Justice Network‟s (Network) confidential database. Bowlin maintains
the information included his entire police record of arrests, charges, and
convictions as well as personal information such as his social security number, date
of birth, contact information, and driver‟s license number. He alleges that only
some of the information wrongfully obtained is also public record. Bowlin is a
small business owner in the Pineville area. He alleges that Taylor has defamed his
good name and business reputation and has invaded his right to privacy.
Bowlin and Taylor have a history of ill will which began when Bowlin
started dating Taylor‟s ex-wife. Bowlin alleges the confidential information was
obtained for, and provided to Taylor, by an unidentified member of the Pineville
City Police Department using police computers to access the Network‟s database.
Bowlin alleges he learned that an as-yet unidentified member of the Pineville City
Police Department logged onto the secure website, obtained confidential
information about Bowlin, and provided that information to Taylor. Bowlin
identifies his source of information at the Network as Detective Shelly Scott
(Scott), an employee of the Louisiana State Police. Bowlin alleges Scott informed
him that she conducted an internal investigation into the inappropriate utilization of
the database by an employee of the Pineville City Police Department who obtained
the database information about Bowlin. Bowlin asserts that Scott cannot provide
any information on the matter until she is properly subpoenaed in a lawsuit. Taylor maintains that the information mysteriously appeared in his mailbox one day from
an unknown source.
Along with filing the lawsuit, Bowlin issued a subpoena to obtain Scott‟s
file. Approximately four months after suit was filed, and the subpoena issued, but
before the state police responded to the subpoena, Pineville and the Chief filed a
motion for summary judgment asserting Bowlin cannot prove his case. They assert
there are no genuine issues of material fact in dispute. Pineville and the Chief
assert that Bowlin‟s responses to discovery and his testimony at the hearing
demonstrate that he does not know the identity of the member of the police
department who allegedly improperly obtained the information and provided it to
Taylor, and he therefore cannot prove his allegations. The trial court granted
summary judgment dismissing Plaintiff‟s claims against Pineville, Terrell Paul,
Donald Weatherford, and “John Doe” with prejudice. The trial court certified the
judgment as a final and appealable judgment. Bowlin appeals asserting the trial
court erred in granting summary judgment prematurely and in finding there are no
genuine issues of fact in dispute.
LAW AND DISCUSSION
The basis for obtaining the dismissal of an action on summary judgment is
provided in La.Code Civ. P. art. 966. In pertinent part, La.Code Civ.P. art. 966(C)
(emphasis added) expressly provides “After adequate discovery or after a case is
set for trial, a motion which shows that there is no genuine issue as to material fact
and that the mover is entitled to judgment as a matter of law shall be granted.”
We review motions for summary judgment de novo to determine whether
the trial court‟s decision was appropriate. Ross v. Conoco, Inc., 02-299 (La.
10/15/02), 828 So.2d 546. After a review of the record, we find the trial court
erred in granting summary judgment. Bowlin was not accorded reasonable time to
conduct discovery. His subpoena to the Louisiana State Police was still
2 outstanding, and he had not yet been provided the information subpoenaed. This
was the only means of discovery available to Plaintiff to obtain the information
needed to proceed with his suit and further discovery. This information, known
only to Scott and the state police, is critical to Bowlin‟s case as to all Defendants,
especially “John Doe.” In a recent case, this court held that a party “ „must be
given a fair opportunity to present their case.‟” Simon v. Belaire, 11-442, p. 3
(La.App. 3 Cir. 10/5/11), 74 So.3d 1250, 1252, writ denied, 11-2454 (La.2/3/12)
__ So.3d__ (quoting Leak & Anderson LLP v. SIA Ins. Co. (Risk Retention Group),
Ltd., 03-1600, pp. 3-4 (La.App 4 Cir. 3/3/04), 868 SO.2d 967, 969. In Simon we
held:
After review, we find that the failure to allow Defendants to complete discovery, as set out in the trial court‟s discovery schedule, renders the motion for summary judgment premature.
Generally, a motion for summary judgment may only be granted “[a]fter adequate discovery or after a case is set for trial….” La.C.C.P. art. 966 (C)(1). Although the language of article 966 does not grant a party the absolute right to delay a decision on a motion for summary judgment until all discovery is complete, the law does require that the parties be given a fair opportunity to present their case. Doe [v. ABC Corporation], 00-1905 (La.App. 4 Cir. 6/27/01), 790 So.2d 136; Rumore v. Wamstad, 99-557, p. 7 (La.App. 5 Cir. 2/8/00), 751 So.2d 452, 456, citing Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908 (La.1986).
Leake & Andersson, LLP v. SIA Ins. Co. (Risk Retention Group), Ltd., 03-1600, pp. 3-4 (La.App. 4 Cir. 3/3/04), 868 So.2d 967, 969.
Id. at 1252. (alterations in original)
In Simon, suit was filed in May 2008 but the court did not set discovery
dates until September 2010. The plaintiffs filed their motion for summary
judgment on January 26, 2011, which was set for hearing on February 14, 2011.
The defendants in Simon moved for a continuance based on their lack of
representation, and, that as florists, the date for the hearing was their busiest day of
the year. The trial court denied the motion for continuance. The defendants hired
an attorney who re-urged the motion to continue and filed an opposition to the
3 motion for summary judgment, arguing he needed time to prepare a response to the
motion for summary judgment as no discovery had been accomplished. The trial
court denied a continuance, and on that same date granted the plaintiffs‟ motion for
summary judgment. This court reversed, finding the trial court‟s grant of summary
judgment premature. We reasoned in Simon that:
[T]he information sought by Defendants pertains directly to the unresolved factual issue of damages. Further, the additional discovery sought is relevant to the issues before the court on summary judgment. Plaintiffs‟ case rests largely on the testimony of their expert, Al Mallet. As of the time of the hearing on the motion for summary judgment, his deposition had not been taken, nor had Defendants‟ expert had an opportunity to inspect the property. Given that time still remained under the trial court‟s own discovery order in which to complete this discovery, we find that the trial court abused its discretion in granting the motion for summary judgment.
Id. at 1252-53.
In the present case the suit had only been filed four months before the
Defendants filed their motion for summary judgment. The Plaintiff did not delay
in seeking to find the key information he needed to proceed with the case as he
filed a subpoena directed to the Louisiana State Police when he filed suit. Though
summary judgment is intended to provide an expeditious means of resolving
disputes where no genuine issues of material fact exist, the process must not be
employed so as to deprive litigants a “fair opportunity to present their case.” Id. at
1252.
We find the trial court erred in granting the Defendants‟ motion for
summary judgment under the circumstances of this case. Moreover, there are
many genuine issues of fact in dispute which cannot be resolved at this early stage
of the proceedings. Plaintiff has identified a witness employed by the Louisiana
State Police who allegedly can provide the name of the person who may have
obtained Bowlin‟s information improperly and thereby provide Bowlin with the
name of “John Doe” whom he seeks to make a party to this litigation. Bowlin has
4 no other means to obtain this information but by the subpoena he filed without
delay concurrently with his petition for damages. Taylor‟s testimony at the hearing
on the motion for summary judgment was contradicted by other witnesses creating
factual issues which cannot appropriately be determined on summary judgment.
We reject the Defendants‟ argument that Bowlin‟s inability to identify John Doe at
this stage of the proceedings equates to there being no evidence to support
Bowlin‟s allegations. Bowlin is entitled to a reasonable time to conduct discovery
including a reasonable time to receive a response to the outstanding subpoena.
For the reasons as stated, we reverse the trial court‟s ruling and remand the
case for further proceedings in accordance with the law. All costs of appeal are
assessed against Defendants/Appellees.