Payne T. Trichell v. Christopher McClure

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2021 CA 1240

PAYNE T. TRICHELL

VERSUS

CHRISTOPHER McCLURE

Judgment Rendered: APR 0 8 2022

On appeal from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
No. C615092

The Honorable Timothy E. Kelley, Judge Presiding

Charles L. Trichell Attorney for Plaintiff/Appellant,
Baton Rouge, Louisiana Payne T. Trichell

H. Alston Johnson, III Attorneys for Defendant/Appellee,
J. Alan Harrell GAA -Nicholson, LP

Gregory J. Reda
Baton Rouge, Louisiana

BEFORE: McDON/A LD, LANIER, AND WOLFE, JJ.

WOLFE, J.

Payne T. Trichell appeals a summary judgment that dismissed his claims

against GAA -Nicholson, LP. We affirm.

FACTS

In the early morning hours of September 7, 2011, twenty-one- year- old

Trichell returned home to the Indigo Park Apartments in Baton Rouge and took a

golf cart for a joyride around the apartment complex. Baton Rouge City Police

Officer Christopher McClure was a " courtesy officer" who lived at the complex and

saw Trichell driving the golf cart at a high rate of speed over speed bumps. McClure

approached Trichell and Trichell attempted to flee on foot. An altercation ensued,

during which McClure used a takedown maneuver to subdue and handcuff the

apparently intoxicated Trichell. As a result, Trichell claims he suffered serious

injuries, including a fractured jaw that required extensive medical treatment.

Trichell instituted this suit against McClure, seeking damages for his injuries.

In his answer, McClure asserted a third -party demand against GAA -Nicholson

Commercial, LP, d/ b/ a Indigo Park Apartments (" GAA"), alleging that he worked

in a dual capacity as a Baton Rouge police officer and as an employee of GAA.

Trichell then amended his petition to name GAA as a defendant, alleging it was

vicariously liable for the acts of its employee, McClure. GAA denied the allegations

and asserted various affirmative defenses.

In January 2021, almost ten years after the incident at issue and more than

six years after Trichell filed his amended petition naming GAA as a defendant, GAA

filed a motion for summary judgment seeking dismissal of all claims against it. GAA

argued it could not be held vicariously liable for McClure' s actions because McClure

was acting as an independent contractor at the time of the incident, not a GAA

employee.
Trichell moved to continue the hearing on GAA' s motion on the basis of

outstanding discovery. Trichell then opposed the motion for summary judgment on

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the same basis he sought the continuance and further argued that GAA' s motion for

summary judgment raised a new issue that necessitated additional discovery and

rendered the motion premature. The trial court denied the motion to continue and

granted the motion for summary judgment, dismissing all claims against GAA.

Trichell now appeals.'

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment

shall be granted if the motion, memorandum, and supporting documents show there

is no genuine issue of material fact and the mover is entitled to judgment as a matter

of law. La. Code Civ. P. art. 966A( 3). The summary judgment procedure is favored

and shall be construed to secure the just, speedy, and inexpensive determination of

every action. La. Code Civ. P. art. 966A( 2). The court may consider only those

documents filed in support of or in opposition to the motion for summary judgment

and shall consider any documents to which no objection is made. La. Code Civ. P.

art. 9661)( 2). In determining whether summary judgment is appropriate, appellate

courts review evidence de novo under the same criteria that governs the trial court' s

determination of whether summary judgment is appropriate. In re Succession of

Beard, 2013- 1717 ( La. App. 1st Cir. 6/ 6/ 14), 147 So. 3d 753, 759- 60.

The initial burden of proof is on the party filing the motion for summary

judgment. See La. Code Civ. P. art. 9661)( 1). The mover may meet this burden by

filing supporting documentary evidence consisting of pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records,

stipulations, and admissions with the motion for summary judgment. See La. Code

Civ. P. art. 966A(4). The mover' s supporting documentary evidence must prove the

essential facts necessary to carry his burden. Thus, in deciding a motion for

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McClure' s third party demand against GAA was also premised on vicarious liability and
dismissed by the same summary judgment; however, this appeal is limited to the summary
judgment dismissing Trichell' s claims against GAA.
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summary judgment, it must first be determined whether the supporting documents

presented by the mover are sufficient to resolve all material fact issues.

Crockerham v. Louisiana Medical Mutual Insurance Company, 2017- 1590 ( La.

App. 1st Cir. 6/ 21/ 18), 255 So. 3d 604, 608.

Once the motion for summary judgment has been properly supported by the

moving party ( i.e., the mover has established the material facts through its

supporting documentary evidence), and the mover has made a prima facie showing

that the motion for summary judgment should be granted, the burden shifts to the

non-moving party to produce factual support, through the use of proper documentary

evidence attached to his opposition, sufficient to establish that he will be able to

satisfy his evidentiary burden of proof at trial - the existence of a genuine issue of

material fact or that the mover is not entitled to judgment as a matter of law. See

Babin v. Winn- Dixie Louisiana, Inc., 2000- 0078 ( La. 6/ 30/ 00), 764 So. 2d 37, 39.

If the non-moving party fails to produce factual support in his opposition sufficient

to establish that he will be able to satisfy his evidentiary burden of proof at trial, La.

Code Civ. P. art. 9661)( 1) mandates the granting of the motion for summary

judgment. See Babin, 764 So. 2d at 40.

In ruling on a motion for summary judgment, the trial court' s role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but instead

to determine whether there is a genuine issue of triable fact. Janney v. Pearce,

2009- 2103 ( La. App. 1 st Cir. 5/ 7/ 10), 40 So. 3d 285, 289, writ denied, 2010- 1356

La. 9/ 24/ 10), 45 So. 3d 1078. Further, simply showing the presence of disputed

facts is insufficient if there is no legal issue presented by those contested facts. See

Franklin Credit Management Corp. v. Gray, 2007- 1433 ( La. App. 4th Cir.

1/ 14/ 09), 2 So. 3d 598, 603, writ denied, 2009- 0476 ( La. 4/ 17/ 09), 6 So. 3d 795. A

genuine" issue is a triable issue, which means that an issue is genuine if reasonable

persons could disagree. If on the state of the evidence, reasonable persons could

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reach only one conclusion, there is no need for a trial on that issue. Kasem v. State

Farm Fire & Casualty Company, 2016- 0217 ( La. App. 1st Cir. 2/ 10/ 17), 212

So. 3d 6, 13. A fact is " material" when its existence or nonexistence maybe essential

to a plaintiff' s cause of action under the applicable theory of recovery. Id. Because

the applicable substantive law determines materiality, whether a particular fact in

dispute is material must be viewed in light of the substantive law applicable to the

case. Bryant v. Premium Food Concepts, Inc., 2016- 0770 ( La. App. 1st Cir.

4/ 26/ 17), 220 So. 3d 79, 82, writ denied, 2017- 0873 ( La. 9/ 29/ 17), 227 So. 3d 288.

Under Louisiana law, an employer is vicariously liable for the negligence of

its employees that occurs within the course and scope of the employees'

employment.
See La. Code Civ. art. 2320; Shannon v. Vannoy, 2017- 1722 ( La.

App. 1st Cir. 6/ 1/ 18), 251 So. 3d 442, 452 n. 8. In contrast, an employer is generally

not liable for the torts of independent contractors performing their contractual duties

unless the employer maintains operational control over the activity in question.

Butler v. Boutan, 2014- 1058 ( La. App. 1st Cir. 12/ 23/ 14), 168 So. 3d 501, 505.

Whether an employer-employee relationship exists is a factual determination

decided on a case- by-case basis determined by the totality of the circumstances, but

primarily on whether the employer has the right or duty of selection and engagement,

payment of wages, power of dismissal, and power of control. Bolden v. Tisdale,

2021- 00224 ( La. 1/ 28/ 22), So. 3d ( 2022 WL 262976, * 6). This requires

consideration of whether the employer has the right to supervise and control the

worker. Id. The burden of proof lies with the party seeking to establish the

employer- employee relationship. Hillman v. Comm -Care, Inc., 2001- 1140 ( La.

1/ 15/ 02), 805 So. 2d 1157, 1163.

GAA contends that an employer- employee relationship between it and

McClure cannot be shown. In support of its motion for summary judgment, GAA

submitted the Courtesy Officer Services Agreement executed by McClure and the

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apartment complex' s property manager. The agreement provided that as an

independent contractor for the property management company, McClure agreed to

serve as the on- site courtesy officer for a monthly fee that was to be credited against

McClure' s monthly rental obligation. Under the terms of the agreement, McClure

was responsible for " providing a courteous presence among residents whenever ...

on the property ." "assisting ... in the enforcement of rules and regulations regarding
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all common and recreational areas," and generally assisting property management.

The specific duties McClure was required to perform included being on call for

disturbances or safety related calls; walking and patrolling the property on a random

basis; checking the property' s lights, gates, and leasing office security; locking

designated areas nightly; attending as many social functions sponsored by the

property as possible, but at least one each quarter; assisting management with

resident problems when requested; attending instruction on crime prevention

provided by management and participating with residents in crime prevention

seminars; meeting with management three times weekly; and notifying management

of planned absences. In connection with those duties, McClure was provided a daily

activity report on which to note the times areas of the property were checked and if

criminal activity was observed, as well as a weekly report for the lights on the

property.

In further support of its motion, GAA submitted the affidavit of Jonathan

Tucker, a management executive who attested that the methods and timing of

completing the duties outlined in the agreement were within the control of the

courtesy officer. Tucker stated that the officers had the discretion to perform their

services and handle each situation based on their training and experience as law

enforcement officers. The security officers, including McClure, were not provided

with tools or training to perform the security -related duties and inspections, which

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were performed without the accompaniment of management or other apartment

complex personnel.

GAA also submitted McClure' s deposition testimony, in which he stated that

he understood that courtesy officers were considered employees of the apartment

complex. However, he clarified that the only compensation he received was in the

form of a discount on his rent obligation and that he received no tax forms from

GAA, did not declare that amount on his own income tax return, and did not formally

notify the Baton Rouge Police Department of the arrangement though he believed

the department was aware of it. McClure testified that on the night in question he

saw Trichell on the golfcart while walking toward his own apartment after his shift

with the police department. McClure explained that he used his police issued

equipment as he stopped and handcuffed Trichell. Ultimately, McClure issued

Trichell a summons for criminal mischief and resisting arrest.' McClure stated he

followed police procedures and issued the summons as an off-duty police officer,

performing the duties he was sworn to uphold. He explained that GAA gave him no

training as to how to perform his courtesy officer duties and the authority to arrest

or issue a summons was within the discretion of the officer. McClure testified that

during the incident he took defensive action in response to Trichell' s actions, in

accordance with his police training.

GAA' s summary judgment evidence sufficiently pointed out the absence of

factual support for Trichell' s claim that McClure was its employee. The evidence

established that McClure handled the incident at his own discretion, according to his

police training. The burden of proof then shifted to Trichell to produce factual

support, through the use of proper documentary evidence, sufficient to establish the

existence of a genuine issue of material fact regarding whether McClure was GAA' s

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McClure testified that Trichell later pled guilty to the charges under La. Code Cr. P. art.
894.

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employee. See La. Code Civ. Pro. art. 9661)( 1); Bolden, So. 3d at ( 2022

WL 262976 at * 7).

When a motion for summary judgment is made and supported as required by

law, an adverse party must respond with evidence that sets forth specific facts

showing that there is a genuine issue for trial. If he does not, summary judgment, if

appropriate, shall be rendered against him. See La. Code Civ. P. art. 96713; Bolden,

So. 3d at ( 2022 WL 262976 at * 8).

Trichell filed no evidence in opposition to GAA' s motion for summary

judgment, arguing instead that the motion was premature because there was

outstanding discovery and because additional discovery was necessary.' Trichell

makes the same argument on appeal.

Louisiana Code of Civil Procedure article 966 requires that parties have " an

opportunity for adequate discovery" before summary judgment is granted. The

requirement is that adequate discovery be conducted, not that discovery be

completed. Law Offices of Lehman v. Rogers, 2021- 0682 ( La. App. 1st Cir.

12/ 22/ 21), So. 3d ( 2021 WL 6071600, * 3). There is no absolute right

to delay a motion for summary judgment until discovery is complete. Preston v.

Southern University Through Board of Supervisors of Southern University

Agricultural and Mechanical College, 2020- 0035 ( La. App. 1st Cir. 7/ 13/ 21), 328

So. 3d 1194, 1203. The trial court has broad discretion when regulating pre-trial

discovery, which will not be disturbed on appeal absent a clear showing of abuse. It

is within the trial court' s discretion to render a summary judgment or require further

discovery. Campbell v. Dolgencorp, LLC, 2019- 0036 ( La. App. 1st Cir. 1/ 9/ 20),

294 So. 3d 522, 527.

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On appeal, Trichell does not challenge the trial court' s denial of his motion to continue the
hearing on the motion for summary judgment, which was premised on outstanding and incomplete
discovery.
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Trichell seeks damages for a 2011 incident. GAA filed its answer in 2017,

denying Trichell' s allegations of liability. To prove his theory of vicarious liability,

Trichell bore the burden of proving an employer- employee relationship between

GAA and McClure. See Hillman, 805 So. 2d at 1163. We are not persuaded by

Trichell' s argument that the employer- employee relationship was not at issue until

GAA filed its motion for summary judgment. Further, given the length of time

involved, we are not persuaded that the trial court abused its discretion in rendering

summary judgment rather than requiring further discovery.

On appeal, Trichell argues for the first time that GAA waived the independent

contractor defense by failing to plead it in its answer. Under La. Code Civ. P. art.

966D( 2), we may consider only those documents filed in support of or in opposition

to the motion for summary judgment. Neither Trichell nor any other party filed a

copy of GAA' s answer in support of or in opposition to the motion for summary

judgment; therefore, we are prohibited from considering GAA' s answer in reviewing

the summary judgment. See La. Code Civ. P. art. 966D( 2); S& P Investments, LLC

v. Nguyen, 2020- 0602 ( La. App. 1st Cir. 1/ 25/ 21), 319 So.3d 864, 867. Trichell' s

argument that the summary judgment should be reversed on this basis is without

merit.

On the motion for summary judgment, Trichell failed to show that he would

be able to bear his burden at trial of proving that McClure, the alleged tortfeasor,

was an employee of GAA. Thus, the trial court was correct in granting summary

judgment and dismissing Trichell' s claims against GAA.

CONCLUSION

The May 17, 2021 summary judgment dismissing Trichell' s claims against

GAA -Nicholson, LP, is affirmed. All costs of this appeal are assessed to Payne T.

Trichell.

AFFIRMED.

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