Natalie Henderson Individually and as Natural Tutrix of Her Minor Child "Gh" v. Josh Capdeville, Citizens' Committee for Education D/B/A Homer A. Plessy Community School and Guideone Insurance

NATALIE HENDERSON * NO. 2022-CA-0655
INDIVIDUALLY AND AS
NATURAL TUTRIX OF HER *
MINOR CHILD "GH" COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
JOSH CAPDEVILLE, STATE OF LOUISIANA
CITIZENS' COMMITTEE FOR * * * * * * *
EDUCATION D/B/A HOMER A.
PLESSY COMMUNITY
SCHOOL AND GUIDEONE
INSURANCE

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-03150, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Chief Judge Terri F. Love
******
(Court composed of Chief Judge Terri F. Love, Judge Paula A. Brown, Judge
Tiffany Gautier Chase)

Marcus J. Plaisance
Mark David Plaisance
PLAIANCE LAW, LLC
P O Box 1123
Prairieville, LA 70769

Elizabeth A.B. Goree
THE LAW OFFICE OF ELIZABETH GOREE
4917 S. Sherwood Forest Blvd., Suite 200
Baton Rouge, LA 70816

Hunter F. Thomas
THOMAS LAW FIRM
201 St. Charles Avenue, Suite 2500
New Orleans, LA 70170

COUNSEL FOR PLAINTIFF/APPELLANT

William P. Gibbens
Gwyneth O’Neil
SCHONEKAS, EVANS, McGOEY & McEACHIN, L.L.C.
Suite 1600

909 Poydras Street
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

JUDGMENT REVERSED AND REMANDED
March 3, 2023

TFL

PAB

TGC This matter arises out of the alleged sexual assault of a 12-year-old minor by

his teacher. Appellant Natalie Henderson (“Ms. Henderson”), individually and as

tutrix of her minor child G.H.1, filed suit against defendants, Josh Capdeville (Mr.

Capdeville), Citizens’ Committee for Education, D/B/A Homer A. Plessy

Community School (“Homer Plessy”) and GuideOne Insurance. Ms. Henderson

alleges that Mr. Capdeville, G.H.’s homeroom and science teacher, sexually

assaulted G.H. at school.

On appeal, Ms. Henderson argues the trial court erroneously granted Mr.

Capdeville’s motion for summary judgment. Mr. Capdeville asserted that the

supporting documentation attached to his motion, which included affidavits of

Homer Plessy personnel and his attorney, video statements from G.H., and G.H.’s

medical records, demonstrated that Ms. Henderson would not be able to satisfy her

burden of proof at trial. Ms. Henderson countered that Mr. Capdeville’s evidence

was insufficient to resolve all issues of material fact.

Based upon this Court’s de novo review of the record, we find that genuine

issues of material fact remain that preclude summary judgment relief. Accordingly,
1 Pursuant to Uniform Rules, Courts of Appeal, Rule 5-2, the minor child shall be referenced as

“G.H.” in this opinion to protect his confidentiality.

1

we reverse the trial court’s judgment and remand the matter to the trial court for

further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

G.H., a “high functioning autistic” child,2 was twelve years old at the time of

the alleged sexual assault(s). Sometime after G.H. returned home from school on

February 12, 2020, Ms. Henderson overheard G.H. talking to himself in the shower.

He mentioned not having a boyfriend. Ms. Henderson asked G.H. if anyone was

touching him. G.H. responded that “Mr. C” had touched him and had put his penis

in G.H.’s behind. He said the contact happened “yesterday” and had happened ten

times.3

After G.H.’s disclosure that Mr. Capdeville had sexually assaulted him, Ms.

Henderson took him to Children’s Hospital. There, G.H. was forensically examined

by medical staff and was assessed in the Social Services Section. The Children’s

Hospital medical records revealed, in part, that G.H. reported that Mr. Capdeville

had put his put his penis in G.H.’s butt and did it “multiple times” and that Mr.

Capdeville’s finger touched G.H.’s private area and “started playing with it.” G.H.

further alleged that the first time it happened was “last Friday.” He said he kept

asking Mr. Capdeville to stop; but Mr. Capdeville did not. The Children’s Hospital

test results were negative for penile lesions, anal fissures, sperm cells, and sexually

transmitted diseases.

2 G.H.’s date of birth is June 17, 2007.

3 The facts of G.H.’s initial accusation to Ms. Henderson of Mr. Capdeville’s alleged sexual assault

are taken from the Children’s Hospital records that were admitted into evidence.

2

Based on a referral from Children’s Hospital, Ms. Henderson took G.H. to the

Audrey Hepburn Care Center where he was forensically examined. According to

the interviewer’s notes, G.H. disclosed, in part, that:

One of his classmates bullies him at school. Mr. C put
penis in my butt. Mr. C teaches us science. Don’t tell my
mom that he put his penis in my butt. No students in the
classroom, just me and him. He closed the door, taking his
clothes and my clothes off. Put his clothes and my clothes
back on. Went downstairs to Ms. Andrea/math class.
Multi-X (10x). Stayed in it. Hair on it (white). Hurting
really bad. Finger touched my private area, started playing
w/it, touching it a lot, kept telling him to stop. Said my
mom should let people die. Put penis in butt. Not hurt now.
Mom wanted to know if anyone been touching on me, it
was Mr. C. Knew he was going to do something terrible.

Subsequently, Ms. Henderson reported G.H.’s sexual assault allegations to

Megan Raychaudhuri (“Principal Raychaudhuri”), the principal of Homer Plessy.

Principal Raychaudhuri conducted an investigation. The school’s investigation did

not substantiate the sexual assault allegations against Mr. Capdeville.

The New Orleans Police Department (“NOPD”) also opened an investigation.

Its investigation did not result in any charges against Mr. Capdeville.

Thereafter, Ms. Henderson filed a Petition for Damages (“the Petition”). The

Petition alleged in part, that “[d] uring that period of time [when G.H. was assigned

to Mr. Capdevillle’s homeroom], Defendant Josh Capdeville, on at least one

occasion on February 12, 2020, committed criminal sexual assault on plaintiff’s

minor child, ‘G.H.,’ during regular school hours on the school premises of Homer

A. Plessy Community School.”

Mr. Capdeville’s Motion for Summary Judgment

3

As part of his response to the Petition, Mr. Capdeville filed a motion for

summary judgment,4 maintaining that there was no physical evidence that he raped

or otherwise assaulted G.H. In support of his motion, Mr. Capdeville attached

affidavits from Principal Raychaudhuri; two Homer Plessy teachers—Dr. Jancarlo

“J.C.” Romero and Andrea Arrellano—along with photographs of the inside of Mr.

Capdeville’s classroom and a closet; 5 an affidavit from Mr. Capdeville’s attorney;

G.H.’s medical records; and video interviews of G. H. recorded by Ms. Henderson.

Principal Raychaudhuri’s Affidavit

Principal Raychaudburi averred that Homer Plessy has over twenty-two cameras

in the school building and/or on the campus. She said she watched over four hours

of video surveillance footage from the school that was recorded on February 12,

2020. She stated that her review of the surveillance video showed that G.H. and Mr.

Capdeville were never alone in the classroom; that G.H. left Mr. Capdeville’s

classroom with students to go to other classes and returned to Mr. Capdeville’s

classroom with other students; and that G.H. left school with his mother around 1:10

p.m. Principal Raychaudhuri stated that no one reported viewing anything out of the

ordinary or untoward on February 12, 2020. The video surveillance footage

reviewed by Principal Raychaudhuri was not introduced into evidence.

Principal Raychaudhuri’s affidavit also asserted that she interviewed G.H.

about the sexual assault allegations in the presence of Ms. Henderson. According to

Principal Raychaudhuri, G.H. alleged that Mr. Capdeville raped him 10 times on

4 Mr. Capdeville also denied the allegations of the Petition and filed a reconventional demand.In
the reconventional demand, Mr. Capdeville accused Ms. Henderson of defamation and making
threats against him on social media cites. Mr. Capdeville ultimately obtained a restraining order
against Ms. Henderson.
5 Attached to Dr. Romero’s affidavit were photographs of the classroom and the classroom closet.

The images depicted in the photographs were not clearly visible.

4

February 12, 2020, by the classroom door, and that the rape(s) had only occurred on

that day.

Dr. Romero’s Affidavit

Dr. Romero said that he shared classroom space with Mr. Capdeville. Their

classrooms were separated by partitions. Dr. Romero maintained that he could hear

what was happening in Mr. Capdeville’s classroom. In addition, Dr. Romero

described a closet in the classroom as “extremely cluttered and inaccessible.” Dr.

Romero said, “[d]uring my tenure at Homer Plessy, I never once saw or heard Mr.

Capdeville lingering in his classroom with G.H., nor any interaction between the two

which I would have deemed inappropriate or concerning.”

Ms. Arellano’s Affidavit

Ms. Arellano said that G.H. attended her class after he left Mr. Capdeville’s

class. She asserted that G.H. arrived on time to her class almost every day he was

present at school. G.H. never complained to Ms. Arellano of any abuse by Mr.

Capdeville.

Attorney Affidavit

An affidavit from one of Mr. Capdeville’s attorneys maintained that he had

sent a DNA sample from Mr. Capdeville to NOPD. In response, a NOPD officer

sent him an e-mail which stated that “[a] comparison was made to the buccal swab

seized from your client. No DNA from your client was found within any evidence.”

G.H.’s Medical Records

Mr. Capdeville’s motion for summary judgment emphasized that the

Children’s Hospital test results were negative for lesions, fissures, sperm cells, and

sexually transmitted diseases.

Ms. Henderson’s Videos of G.H.

5

Mr. Capdeville offered into evidence two videos of G.H. recorded by Ms.

Henderson in which G.H. discussed the sexual assault allegations. Mr. Capdeville

noted that G.H. gave conflicting accounts of the alleged sexual assault(s) in the video

statements than the accounts previously given in his medical records and in the

interview with Principal Raychaudhuri. Mr. Capdeville highlighted that G.H.

changed the location of the assault from near the classroom door to the closet, the

number of times he was assaulted, and the time of day of the assaults, with G.H.

adding that he was raped by Mr. Capdeville every morning at school.

Mr. Capdeville argued that no genuine issues of material fact exist because

the totality of his evidence showed it was “factually impossible” that he assaulted

G.H. on February 12, 2020, and any allegations that G.H. was assaulted on any other

date were “unbelievable.”

Mr. Capdeville’s motion for summary judgment was fixed for hearing on

January 20, 2022. He also argued that Ms. Henderson’s opposition, which was filed

on January 7, 2022, was untimely pursuant to La. CC.C.P. art. 966(B).6 After

listening to argument, the trial court reconvened the hearing to allow Ms. Henderson

time to find and depose a potential witness, another minor child.

Ms. Henderson’s Opposition

At the time the summary judgment hearing was reconvened on May 27, 2022,

Ms. Henderson had retained new counsel. Her counsel requested a continuance,

6 La. C.C.P. art. 966(B)(2) provides that unless the parties and the court agree to an extension

that “[a]ny opposition to the motion and all documents in support of the opposition shall be filed
and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the
motion.”

6

arguing in part that he required additional time to investigate the allegations and

conduct discovery. However, the trial court denied the request.

Ms. Henderson’s written opposition to the summary judgment motion

included affidavits from Ms. Henderson, Dr. Joseph Tramontana, a clinical

psychologist who evaluated G.H., and Karen Lewis, one of G.H.’s teachers who had

a master’s degree in special education.7

Ms. Henderson’s Affidavit

Ms. Henderson asserted that G.H.’s autism affects his cognitive functions,

which means he processes information and communicates differently than other

children his age. She averred that he has trouble recalling exact details and facts,

and can become easily confused. Ms. Henderson stated that G. H. told her that Mr.

Capdeville sexually assaulted him, and that he was sexually assaulted on more than

one occasion. Ms. Henderson stressed that she has no reason to doubt G.H.’s

assertion that he was sexually assaulted.

Dr. Tramontana’s Affidavit

Dr. Tramontana stated that he interviewed G.H. on March 2, 2020, and on

December 21, 2021. In the March 2, 2020 evaluation, he evaluated G.H. by posing

extensive questions and concluded that the “boy’s story about being sexually

molested seems quite believable.” Moreover, Dr. Tramontana indicated that “based

on his psychological condition (high function autism) and his general presentation,

it was highly unlikely that he would have fabricated these accusation[s].” In the

second interview, when Dr. Tramontana asked G.H. why G.H. was there to see him

7 The May 27, 2022 hearing transcript does not show that Mr. Capdeville re-urged his objection

that Ms. Henderson’s opposition was untimely or that the trial court ever ruled on the merits of the
objection.

7

again, G.H. said, “[w]hat the teacher did to me!” The doctor asked if he still had a

problem with that, and he responded, “[s]ometimes,” and spontaneously added, “[h]

e wasn’t like that at first.” When asked how he feels now, G.H. said, “[s]till upset.”

Ms. Lewis’ Affidavit

Ms. Lewis relayed that she has a master’s degree in special education and is

certified in mild-moderate autism, and considers herself qualified to give an expert

opinion for children in this range of autism spectrum. She stated that she has been a

teacher of G.H. since August 2021. Based on her experience, knowledge, training,

and personal knowledge of G.H., she stated that he is not likely to create or make up

a story about his abuse. Ms. Lewis opined that G.H. was “telling the truth to the best

of his recollection of the events that happened to him.”

Based on the evidence offered by Mr. Capdeville and her opposition, Ms.

Henderson asserted that Mr. Capdeville’s motion for summary judgment did not

definitively rule out that G.H. was sexually assaulted. She pointed out that the

evidence offered by Mr. Capdeville—wherein he disputes the sexual assault

allegations and GH’s counter claims that he was sexually assaulted multiple times—

created genuine issues of material fact that prohibited summary judgment relief.

Trial Court’s Judgment

In granting summary judgment, the trial court opined as follows:

I don’t know—and from what I have perceived and what I have learned
of this case, and believe me, I’ve looked at it exhaustively—that there
is any kind of corroboration that can come forward except the testimony
of this young man. But I don’t know if that will carry your burden of
proof. I don’t think you have anything else to carry the burden of
proof. (Emphasis added).

So, I am going to deny your request for the continuance. And you did
not file anything else; I have nothing to consider. So I’m going to grant
the summary judgment because I do not discern any issues, genuine
issues of material fact that have been put forward or any factual

8

information according to 966 that would allow this matter to go
forward.

This timely appeal followed.

STANDARD OF REVIEW

Established jurisprudence provides that “[a]ppellate courts are to review

summary judgments de novo under the same criteria that govern the district court’s

consideration of whether summary judgment is appropriate.” Descant v. Herrera,

03-0953, p. 8 (La. App. 4 Cir. 12/22/04), 890 So. 2d 788, 793. “An appellate court

thus asks the same questions as does the trial court in determining whether summary

judgment is appropriate: whether there is any genuine issue of material fact, and

whether the mover is entitled to judgment as a matter of law.” Smith v. Our Lady of

the Lake Hosp., Inc., 93-2512, p. 26 (La. 7/5/94), 639 So. 2d 730, 750.

“The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action, . . . . The procedure is favored and shall

be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). “After an

opportunity for adequate discovery, a motion for summary judgment shall be granted

if the motion, memorandum, and supporting documents show that there is no

genuine issue as to material fact and that the mover is entitled to judgment as a matter

of law.” La. C.C.P. art. 966(A)(3). Pursuant to La. C.C.P. art. 966(D)(1),8 the burden

8 La. C.C.P. art 966 (D)(1) provides the following:

The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’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 the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense.
The burden is on the adverse party to produce factual support
sufficient to establish the existence of a genuine issue of material
fact or that the mover is not entitled to judgment as a matter of law.

9

of proof on a motion for summary judgment lies with the mover. However, “if the

mover will not bear the burden of proof at trial on the issue that is before the court

on the motion for summary judgment, the mover’s burden ... does not require him to

negate all essential elements of the adverse party’s claim, action or defense.”

Varnado v. 201 St. Charles Place, LLC, 22-0038, p. 8 (La. App. 4 Cir. 6/29/22), 344

So.3d 241, 248 (quoting La. C.C.P. art. 966(D)(1). Instead, the mover must show

an absence of factual support for one or more elements essential to the non-mover’s

claim. Id., p. 8, 344 So.3d at 248-49. The burden of proof does not shift to the

party opposing the summary judgment motion until the mover puts forth a prima

facie case that no genuine issues of material fact remain. D’angelo v. Guarino, 10-

1555, p. 4 (La. App. 4 Cir. 3/9/12), 88 So.3d 683, 686.

Our courts have recognized that a “genuine issue” is a “triable issue” in which

reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.

4/14/04), 870 So.2d 1002, 1006. A “material fact” is one in which its existence or

nonexistence may be essential to plaintiff’s cause of action under the plaintiff’s

applicable theory of recovery. Id. In Smith, 93-2512, p. 27, 639 So.2d at 751, the

Louisiana Supreme Court further explained that “[a] ‘material’ fact is one that would

matter on the trial on the merits.”

Notwithstanding the legislative mandate in La. C.C.P. art. 966 that the

summary judgment procedure is favored, Louisiana jurisprudence recognizes that

“any doubt as to a dispute regarding a material issue of fact must be resolved against

granting the motion and in favor of a trial on the merits.” Indulge Island Grill, L.L.C.

v. Island Grill, L.L.C., 16-1133, p. 5 (La. App. 4 Cir. 5/10/17), 220 So.3d 154, 158

(quoting Jones v. Stewart, 16-0329, p. 8 (La. App. 4 Cir. 10/5/16), 203 So.3d 384,

389). “Even in the absence of a formal opposition to a motion for summary

10

judgment, the moving party must show that he is entitled to summary

judgment. Baker v. Ingram, 447 So.2d 101, 102 (La. App. 4th Cir.1984).[] If the

movant fails in his burden of proving that he is entitled to summary judgment as a

matter of law, the burden never shifts to the adverse party, and the movant is not

entitled to summary judgment.” In re Succession of Jones, 14-0642, pp. 9-10 (La.

App. 4 Cir. 11/12/14), 154 So.3d 624, 629-30. “To satisfy this burden, the mover

must meet a strict standard of showing that it is quite clear as to what is the truth and

that there has been excluded any real doubt as to the existence of a genuine issue of

material fact.” Madison v. Inter-Cont’l Hotels Corp., 14-0717, p. 6 (La. App. 4 Cir.

8/26/15), 173 So.3d 1246, 1250 (quoting Richthofen v. Medina, 14-294, p. 5 (La.

App. 5 Cir. 10/29/14), 164 So.3d 231, 234.

Courts cannot consider the merits, make credibility determinations, evaluate

testimony or weigh evidence in determining whether genuine issues of material fact

exist for purposes of summary judgment. Edgefield v. Audubon Nature Inst., Inc.,

17-1050, p. 5 (La. App. 4 Cir. 3/27/19), 267 So.3d 738, 742.

ASSIGNMENTS OF ERROR

On appeal, Ms. Henderson contends the trial court erred in granting summary

judgment in the following respects: (1) in finding that Mr. Capdeville met his initial

burden of proof to put forth evidence sufficient to resolve all issues of material fact;

and (2) failing to find that reasonable inferences drawn from Ms. Henderson’s

opposition established genuine issues of material fact which required that the

summary judgment motion be denied.

LAW AND ANALYSIS

We begin our review by taking judicial notice that sexual assault claims are

often unwitnessed and the validity of these claims often rests primarily on the

11

credibility of the purported victim and the accused; and moreover, in the instant case,

the purported victim is a minor child with a developmental disability. We also note

that neither Mr. Capdeville nor G.H. has provided sworn testimony.

Mr. Capdeville’s Burden of Proof

Ms. Henderson contends in her first assigned error that Mr. Capdeville did not

meet his burden of proof as the mover so as to shift the burden of proof to Ms.

Henderson. Ms. Henderson argues that Mr. Capdeville did not conclusively refute

that material factual issues remain as to whether G.H. was sexually assaulted. She

supports this argument by pointing out that Mr. Capdeville’s summary judgment

evidence acknowledged that G.H. consistently maintained that Mr. Capdeville

sexually assaulted him on multiple occasions on various dates and/or locations.

Contrariwise, Mr. Capdeville argues that the totality of the affidavits submitted by

Principal Raychaudhuri and his Homer Plessy colleagues, along with the lack of

physical evidence of sexual assault noted in G.H.’s medical records and by the

NOPD, prove that it was impossible for Mr. Capdeville to have sexually assaulted

G.H. Based on our review of the evidence, we agree with Ms. Henderson that Mr.

Capdeville failed to prove that no genuine issues of material facts remained as to

whether G.H. was sexually assaulted so as to entitle Mr. Capdeville to summary

judgment.

Mr. Capdeville significantly relies on the video surveillance footage described

by Principal Raychaudhuri to support his contention that it was “logistically and

factually impossible” that he sexually assaulted G.H. on February 12, 2020.

However, the flaws in this reliance include that the video surveillance footage itself

was not introduced into evidence and the description as to what it purportedly shows

is provided by an interested party, the principal of the defendant school, Homer

12

Plessy. Moreover, the described video surveillance footage is limited to activity

which took place on February 12, 2020, whereas allegations have been raised that

G.H. was assaulted on other dates. Ms. Henderson’s lawsuit states that G.H. was

assaulted “on at least one occasion on February 12, 2020”, and Mr. Capdeville’s

own summary judgment evidence indicates that G.H. has given various statements

as to not only the description of the assault(s), but also the dates, times, and precise

locations of the assaults. For example, the Children’s Hospital records indicate that

G.H. said that Mr. Capdeville assaulted him the Friday before February 12, 2020.

Accordingly, the described video surveillance footage does not rule out that G.H.

could have been sexually assaulted on a date other than February 12, 2020, and does

not preclude that an assault could have taken place outside the scope of the video

surveillance cameras.

Similarly, the affidavits of Dr. Romero and Ms. Arrellano do not conclusively

prove that Mr. Capdeville never sexually assaulted G.H. Although their statements

attest that they did not witness any sexual assault by Mr. Cadeville, their statements

are not dispositive as to whether or not any assault, in fact, ever occurred.

We also are not persuaded by Mr. Capdeville’s arguments that the absence of

physical evidence in G.H.’s medical records and the lack of formal charges brought

by the NOPD definitively confirm that Mr. Capdeville did not sexually assault G.H.

In particular, the medical records did not affirmatively find that G.H. was not

sexually assaulted; indeed Children’s Hospital referred G.H. for counseling.

Moreover, G.H.’s sexual assault allegations included unwanted touching. Mr.

Capdeville has provided no medical authority as to whether unwanted touching or

the other assaults described by G.H. necessarily are always corroborated by physical

evidence. Finally, as there are different evidentiary burdens in civil matters than

13

criminal matters, the lack of formal charges by NOPD against Mr. Capdeville is not

conclusive proof that Mr. Capdeville did not sexually assault G.H.

As referenced herein, in granting summary judgment in Mr. Capdeville’s

favor, the trial court surmised that Ms. Henderson could not corroborate the sexual

assault allegations other than through the testimony of G.H. and concluded that “I

don’t know if that will carry your burden of proof.” However, although it may

appear unlikely from the record that one party can prevail, summary judgment shall

not be granted even if the trial court has grave doubts regarding a party’s ability to

establish disputed facts. See Danna v. Ritz-Carlton Hotel Co., LLC, 15-0651, p. 6

(La. App. 4 Cir. 5/11/16), 213 So.3d 26, 32.

Further, we find that in expressing doubt as to whether G.H.’s testimony

would be sufficient to support the sexual assault allegations that the trial court

essentially determined that G.H.’s testimony alone would not be sufficiently credible

when weighed against the evidence offered by Mr. Capdeville. However, “a trial

judge cannot make credibility determinations on a motion for summary judgment.”

M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov’t, 15-0860, p. 11 (La. App. 4

Cir. 12/2/15), 182 So.3d 312, 320. Our jurisprudence is well-settled that the

weighing of conflicting evidence, consideration of the merits of the issues raised,

and making evaluations of credibility have no place in the summary judgment

procedure. See Williams v. Metro Home Health Care Agency, Inc., 02-0534, p. 3

(La. App. 4 Cir. 5/8/02), 817 So.2d 1224, 1227. A trial is designed to evaluate the

facts when credibility is at issue. See Hutchinson v. Knights of Columbus, Council

No. 5747, 03-1533, p. 8 (La. 2/20/04), 866 So.2d 228, 234.

Here, we find that an essential disputed fact remains as to whether Mr.

Capdeville sexually assaulted G.H., which was not conclusively refuted by the

14

evidence offered in support of Mr. Capdeville’s motion for summary judgment.

Therefore, Mr. Capdeville did not meet his burden of proof as the mover.

Accordingly, this assigned error has merit.

Having determined that Mr. Capdeville failed to meet his burden of proof to

be entitled to summary judgment, we pretermit discussion of Ms. Henderson’s

remaining assignment of error.

CONCLUSION

After reviewing the appellate record de novo, the trial court erred in granting

Mr. Capdeville’s motion for summary judgment. Genuine issues of material fact

remain that preclude summary judgment at this time. Therefore, we reverse the

judgment and remand to the trial court for further proceedings consistent with this

opinion.

JUDGMENT REVERSED AND REMANDED

15