Johnnie Thomas Gunter v. Jefferson Davis Parish

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1018

JOHNNIE THOMAS GUNTER AND LORETTA ELIZABETH LACOSTE, AS THE NATURAL TUTRIX OF HER MINOR CHILD, CASEY ELIZABETH LACOSTE

VERSUS

JEFFERSON DAVIS PARISH AND THE JEFFERSON DAVIS PARISH SHERIFF’S DEPARTMENT, RICHARD E. “RICKY” EDWARDS, JR., INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF JEFFERSON DAVIS PARISH SHERIFF’S DEPARTMENT, TERRIE GUILLORY, IVAN GUILLORY, MIKE HILL, CHAD ROMERO, THE TOWN OF LAKE ARTHUR, CHERYL VINCENT, INDIVIDUALLY, AND AS CHIEF OF POLICE OF THE TOWN OF LAKE ARTHUR, LELAND LASSANDER, JARED MANUEL, AND DERRICK TURNER, OFFICERS OF THE TOWN OF LAKE ARTHUR POLICE DEPARTMENT

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APPEAL FROM THE

THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. C-488-08 HONORABLE STEVEN GUNNELL, DISTRICT JUDGE

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JAMES T. GENOVESE

JUDGE

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Court composed of Oswald A. Decuir, Billy Howard Ezell, and James T. Genovese, Judges.

AFFIRMED.

Thomas Robert Shelton Shelton Law Firm 223 Bendel Road Post Office Drawer 52548 Lafayette, Louisiana 70505-2548 (337) 237-3000 Counsel for Plaintiffs/Appellants:

Johnnie Thomas Gunter and Lorritta Elizabeth LaCoste, as the natural tutrix of her minor child, Casey Elizabeth LaCoste

John F. Wilkes, III Joy C. Rabalais Ray F. Lucas III Erin N. Hargrave 200 West Congress Street, Suite 1000 Post Office Box 4305 Lafayette, Louisiana 70502-4305 (337) 232-1604 Counsel for Defendants/Appellees:

Town of Lake Arthur; Chief Cheryl Vincent, individually and in her official capacity as Chief of Police of the Town of Lake Arthur; Officer Jared Manuel, individually and in his official capacity as a Police Officer for the Town of Lake Arthur; and Officer Leland Laseter, individually and in his official capacity as a Police Officer for the Town of Lake Arthur

David E. Marcantel Marcantel, Marcantel, Wall, Pfeiffer & Stretcher Post Office Box 1366 Jennings, Louisiana 70546-1366 (337) 824-7380 Counsel for Defendant:

Derrick Turner

Lloyd Frederick Schroeder, II Usry, Weeks & Matthews 1615 Poydras Street, Suite 1250 New Orleans, Louisiana 70112 (504) 592-4600 Counsel for Defendants:

Richard E. “Ricky” Edwards, Terry Guillory, Ivan Guillory, and Chad Romero

GENOVESE, Judge.

Plaintiffs, Johnnie Thomas Gunter and Lorritta1 Elizabeth LaCoste, as the

natural tutrix of her minor child, Casey Elizabeth LaCoste, appeal the trial court‟s

grant of summary judgment in favor of Defendants, the Town of Lake Arthur

(Lake Arthur); Chief Cheryl Vincent (Chief Vincent), individually and in her

capacity as Chief of Police of the Town of Lake Arthur; Officer Jared Manuel

(Officer Manuel), individually and in his official capacity as a police officer for the

Town of Lake Arthur; and, Officer Leland Laseter (Officer Laseter), individually

and in his capacity as a police officer for the Town of Lake Arthur, dismissing

Plaintiffs‟ claims against them. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations set forth in the Petition for Damages for

Wrongful Death and Survival Action filed by Plaintiffs, Steven Thomas Gunter

“was killed on June 9, 2007, in Lake Arthur, Louisiana, by one (1) or more of the

Police [D]efendants, acting under „color of law[,‟] as a result of shotgun

wounds . . . .” Plaintiffs‟ petition asserts both a wrongful death and survival action

against Lake Arthur, Chief Vincent, Officer Manuel, and Officer Laseter alleging

that said Defendants were not properly trained to respond to an alleged domestic

dispute and that said Defendants‟ response to the alleged situation was negligent

and caused Steven Gunter‟s death.

Defendants filed a Motion for Summary Judgment on the issue of liability.

Defendants‟ motion argued that there were no genuine issues of material fact as to

Plaintiffs‟ claims against them, and, thus, they were entitled to summary judgment

as a matter of law. Defendants offered the following exhibits as evidence in

1 Though Plaintiff‟s name is listed as “Loretta” in the caption of these proceedings and in the briefs filed herein, this court notes that the spelling which conforms to the way in which she signs her name is “Lorritta.”

support of their motion: (A) the affidavit of Trooper Benjamin LaPoint; (B) the

deposition of Chief Vincent; (C) the deposition of Deputy Terrie Guillory; (D) the

deposition of Lorrita LaCoste; and, (E) the affidavit of Maydell Jones.

In their opposition to the motion filed by Defendants, Plaintiffs offered into

evidence: (A) the deposition of Trooper Benjamin LaPoint; (B) Lake Arthur Police

Department‟s log; (C-1) the affidavit of Darby Trahan; (C-2) a video of the

residence where Steven Gunter was shot; (D) the affidavit of Beth Trahan; (E) the

affidavit of Johnnie Gunter; (F) the affidavit of Catherine Pettifield; and, (G) the

deposition of Nona LaCoste.

A hearing was held on November 30, 2010, after which the trial court took

the matter under advisement and allowed the parties to submit post-trial

memoranda. The trial court issued written Reasons for Ruling on March 15, 2011,

granting Defendants‟ Motion for Summary Judgment. In its Reasons for Ruling,

the trial court declared:

[T]he collective actions and responses of the TOWN OF LAKE ARTHUR were reasonable in light of the circumstances. Officer Laseter was called to the scene after a complaint of domestic disturbance by a neighbor. Upon his arrival, Ms. [LaCoste] stated that the decedent had thrown her from a truck and that he was now in the home. She also told Officer Laseter that Mr. Gunter was armed with a gun. Ms. [LaCoste] later stated that there was no problem or domestic disturbance. In the [c]ourt‟s opinion, it was reasonable of Officer Laseter to attempt to question Mr. Gunter despite Ms. [LaCoste]‟s claims that there had been no domestic disturbance. Ms. [LaCoste] presented the officer with conflicting statements about what had occurred prior to his arrival and that, coupled with the statement that Mr. Gunter was now armed, gave Officer Laseter a reasonable basis to question Mr. Gunter in order to determine that all parties were safe and no threat and/or violence would continue after his departure. When Mr. Gunter refused to cooperate, speak, or exit the home, it was reasonable that the officer would call for back-up to support his position. At no time did the officer forcibly enter the home; indeed, he only entered the home after having been provided a key by Ms. [LaCoste] who was a resident of the house with Mr. Gunter. The actions of the TOWN OF LAKE ARTHUR demonstrate that they had responded to a call of potential domestic violence and that they took every avenue available to them to discuss the matter peaceably and

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non-confrontational[ly] with both Ms. [LaCoste] and Mr. Gunter to assure themselves that no party was in danger. None of the personnel of the TOWN OF LAKE ARTHUR arrived at the home with the intention of causing harm to the decedent. For these reasons . . . the Motion for Summary Judgment filed on behalf of the [D]efendants, TOWN OF LAKE ARTHUR, is hereby granted.

A judgment dismissing Plaintiffs‟ claims against Defendants was signed by the

trial court on May 27, 2011. It is from this judgment that Plaintiffs appeal.

ASSIGNMENTS OF ERROR

Plaintiffs assert that the trial court erred in granting Defendants‟ Motion for

Summary Judgment because adequate discovery had not occurred, that the motion

was premature, and that the trial court erred in ruling that Defendants‟ actions prior

to the shooting death of Steven Gunter were reasonable.

LAW AND DISCUSSION

“Appellate courts review summary judgment de novo, using the same

criteria that govern the trial court‟s consideration of whether summary judgment is

appropriate, and in the light most favorable to the non-movant.” Yokum v. 615

Bourbon Street, L.L.C., p. 25 (La. 2/26/08), 977 So.2d 859, 876 (citing Suire v.

Lafayette City-Parish Consol. Gov’t., 04-1459 (La. 4/12/05), 907 So.2d 37).

Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary

judgment procedure is designed to secure the just, speedy, and inexpensive

determination of every action,” and this “procedure is favored and shall be

construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact,” then judgment shall be granted as a

matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C).

Defendants, as the movants herein, bear the initial burden of proof and must show

that no genuine issue of material fact exists. See La.Code Civ.P. art. 966(C)(2). If

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Defendants successfully meet their burden, then the burden shifts to Plaintiffs to

present factual support adequate to establish that they will be able to satisfy their

evidentiary burden at trial. Id. If, however, Plaintiffs fail to produce the factual

support necessary to establish that they will be able to satisfy their evidentiary

burden of proof at trial, then there is no genuine issue of material fact. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant‟s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Hines v. Garrett, 04-806, p. 1 (La. 6/25/04), 876 So.2d 764, 765-66.

Discovery

On the issue of whether the trial court erred in granting summary judgment

because adequate discovery had not occurred, the record reflects that Plaintiffs

filed suit on June 5, 2008. Defendants filed the Motion for Summary Judgment at

issue herein on October 21, 2010, and the trial court scheduled the hearing of said

motion for November 30, 2010. Plaintiffs did not request a continuance. Instead,

Plaintiffs took the deposition of Trooper LaPoint on November 18, 2010, a copy of

which was introduced into evidence at the hearing on the Motion for Summary

Judgment.

Louisiana Code of Civil Procedure Article 966(1) provides that a defendant

may move for summary judgment “at any time.” Further, La.Code Civ.P. art.

966(C)(1) provides that “[a]fter adequate discovery or after a case is set for trial, a

motion which shows that there is no genuine issue of material fact and that the

mover is entitled to judgment as a matter of law shall be granted.”

The provision for adequate discovery does not grant a party an absolute right to delay a decision on a motion for summary judgment until all discovery is complete. West v. Watson, 35,278 (La.App. 2

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Cir. 10/31/01), 799 So.2d 1189, writ denied, 01-3179 (La.2/8/02), 809 So.2d 140. Unless the party opposing the motion for summary judgment shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there are no genuine issues of fact. Advance Products & Systems, Inc. v. Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788, writ denied, 07-26 (La.3/9/07), 949 So.2d 444. The abuse of discretion standard is used to determine if the trial court allowed adequate time for discovery. Id.

Prime Income Asset Mgmt., Inc. v. Tauzin, 07-1380, pp. 13-14 (La.App. 3 Cir.

4/30/08), 981 So.2d 897, 905-06. In the case before us, Defendants‟ Motion for

Summary Judgment was filed more than two years after suit was filed and three

years after the incident in question. As such, on the facts presented in this case,

and considering the fact that Plaintiffs did not seek a continuance of the hearing on

the motion, we find no merit to Plaintiffs‟ contention that the trial court erred in

granting summary judgment because of inadequate discovery.

Liability

Plaintiffs allege that Defendants, Chief Vincent, Officer Manuel, and Officer

Laseter, were not properly trained to handle such a situation and that their response

to the situation was negligent and caused Steven Gunter‟s death. Plaintiffs, in

brief, argue that:

Neither [Chief Vincent], nor any officer acting directly under her [control], direction and/or supervision can be considered “sufficiently trained” when there is no established (written) operations or policy manual by which to measure “correctness[,”] adequacy, and, most importantly, [c]onstitutionality in existence at the time of the incident in question.

Plaintiffs further contend that the manner in which the situation was handled by

Defendants led to Steven Gunter‟s death and, though none of the police officers for

Lake Arthur who are Defendants herein actually shot and killed Steven Gunter,

these Defendants share in the responsibility of his wrongful death.

Defendants counter that each law enforcement officer present on the date in

question was POST (Peace Officer Standards and Training) certified. Defendants

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argue, in brief, that “[t]he question of lack of proper training and/or negligent

training or supervision is only relevant if there is a breach of the standard of duty

of care.” Thus, Defendants contend that Plaintiffs offer no evidence to support

their assertion “that the actions undertaken by the Lake Arthur Police

Department . . . on that fateful day were unreasonable.” Finally, Defendants assert

that the trial court was correct in granting summary judgment because Plaintiffs

failed to produce factual support sufficient to establish that they will be able to

satisfy their evidentiary burden of proof at trial on a negligence cause of action.

We agree.

The law pertaining to both the duty-risk analysis and the duty owed by

police officers to the public was set forth by this court in Batiste v. Gutierrez,

06-911, pp. 3-4 (La.App. 3 Cir. 12/6/06), 944 So.2d 840, 843, writ denied, 07-44

(La. 3/9/07), 949 So.2d 446 (quoting Wellman v. Evans, 03-1720, pp. 5-7 (La.App.

3 Cir. 6/16/04), 876 So.2d 954, 958-59, writ denied, 04-1760 (La. 10/15/04), 883

So.2d 1057):

The liability of a police officer is determined using the duty/risk analysis. Mathieu v. Imperial Toy Corp., 94-952 (La.11/30/94), 646 So.2d 318. For a plaintiff to recover, he must prove the defendant had a duty to conform his conduct to a specific standard of care; he failed to conform his conduct to that standard; that substandard conduct was a cause-in-fact of the injury, the substandard conduct was a legal cause of the injury; and damages. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id. at 322.

....

A police officer, in carrying out his authority to enforce laws, has a duty to perform his function with due regard for the safety of all citizens who will be affected by his action. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606. An officer must act reasonably to protect life and limb, to refrain from causing injury or harm, and to exercise respect and concern for the well being of those he is employed to protect. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. In considering whether an officer breached his duty, the court‟s task is not to determine whether the officer should have acted differently or if

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there were better options available, but only to determine whether his actions were reasonable under the totality of the circumstances. Syrie, 693 So.2d 1173; Mathieu, 646 So.2d 318.

Pursuant to our thorough de novo review of the evidence which was before

the trial court, we conclude that the trial court was correct in holding that Plaintiffs

failed to produce sufficient evidence to establish that they will be able to prove

negligence on the part of these Defendants at trial; thus, no genuine issue of

material fact exists. The Motion for Summary Judgment filed by Defendants was

properly granted.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary

judgment in favor of Defendants, the Town of Lake Arthur; Chief Cheryl Vincent,

individually and in her capacity as Chief of Police of the Town of Lake Arthur;

Officer Jared Manuel, individually and in his official capacity as a police officer

for the Town of Lake Arthur; and, Officer Leland Laseter, individually and in his

capacity as a police officer for the Town of Lake Arthur, is affirmed. All costs of

this appeal are assessed to Plaintiffs/Appellants, Johnnie Thomas Gunter and

Lorritta Elizabeth LaCoste, as the natural tutrix of her minor child, Casey Elizabeth

LaCoste.

AFFIRMED.