Octavio Diaz-molina v. Walter C. Flower, III

Supreme Court of Louisiana
December 19, 2023
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
OCTAVIO DIAZ-MOLINA
VS.
WALTER C. FLOWER, III
No. 2023-CC-01135
_ _
_ _ _ _
IN
RE: John D. Wogan, in his capacity as the Succession Representative of the
Estate of Walter C. Flower, III - Applicant Defendant; Applying For Supervisory
Writ, Parish of Orleans Civil, Orleans Civil District Court Number(s) 2021- 04139,
Court of Appeal, Fourth Circuit, Number(s) 2023-C-0411;
_ _ _ _ _ _
December 19, 2023
Writ application granted. See per curiam.
Genovese, J., dissents and would deny.
Griffin, J., dissents and would deny.
JBM
JLW
JDH
SJC
WJC
12/19/2023 "See News Release 055 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No.
2023-CC-01135
O
CTAVIO DIAZ-MOLINA
VS.
WALTER C. FLOWER, III
On S
upervisory Writ to the Orleans Civil District Court, Parish of Orleans Civil
P
ER CURIAM
At i
ssue is whether defendant is entitled to summary judgment on the ground
plaintiff’s tort suit is precluded by the exclusivity provisions of the workers’
compensation act. For the reasons that follow, we conclude summary judgment is
appropriate.
U
NDERLYING FACTS AND PROCEDURAL HISTORY
Walter C. Flower, III owned a residence and property in Covington,
Louisiana. He also owned an investment corporation known as Walter C. Flower &
Co. (“Flower & Co.”).
Mr. Flower hired plaintiff, Octavio Diaz -Molina, to perform groundskeeper-
type services on his Covington property, including cutting the grass, cleaning the
pool, and keeping the property’s entrance clean. Mr. Flower determined plaintiff’s
schedule and paid him $400.00 in cash per week. After working for approximately
five months, plaintiff was injured when a pile of debris he was burning burst into
flames and burned him.
Following his injury, plaintiff filed a workers’ compensation claim against
Flower & Co. seeking medical expenses and indemnity benefits. Flower & Co.
answered and denied it was plaintiff’s employer. Plaintiff then amended his claim
to add as defendant, “WALTER C. FLOWER, III, individually.”
12/19/23

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Subsequently, plaintiff settled portions of his workers’ compensation claim
with Mr. Flower, accepting $8,500.00 in exchange for partial settleme nt of past
indemnity benefits owed. Following the settlement, plaintiff voluntarily dismissed
his workers’ compensation claim against Mr. Flower without prejudice but reserved
“all rights for future workers’ compensation benefits against Walter C. Flower, III,
individually.” Also, plaintiff voluntarily dismissed Flower & Co. with prejudice,
asserting “they were not the proper employer.”
In the meanwhile, plaintiff filed the instant tort suit against Mr. Flower
individually (hereinafter referred to as “de fendant”).
1 Plaintiff alleged his tort
claims are not barred by the workers’ compensation act “because his work as a
groundskeeper at FLOWER’s residential property falls outside the ‘trade, business,
or occupation’ requirement.”
Defendant filed a motion for summary judgment, arguing plaintiff’s exclusive
remedy lies in workers’ compensation. Defendant relied on plaintiff’s pleadings
from the workers’ compensation proceeding in which plaintiff admitted Flower &
Co. was “not the proper employer,” as well as evidence of payment of settlement
proceeds between Mr. Flower individually and plaintiff in the workers’
compensation claim, and plaintiff’s deposition in which he testified he understood
the settlement was from Mr. Flower individually.
Plaintiff opposed defendant’s motion, arguing a genuine issue of fact exists
regarding who employed him. He relied on his deposition in which he testified he
did not know whether he was employed by Mr. Flower individually, by Flower &
Co., or both, because no one “officially” told him, and he lacked a personnel file or
other formal employment documents to confirm his status. Further, plaintiff

1 Mr. Flower died in 2022 and his estate, through his executor, John Wogan, was substituted in
his place. For the sake of clarity, we will refer to both Mr. Flower and the executor collectively
as “defendant” in this opinion.

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contended Mr. Flower never told him whether the cash Mr. Flower paid him was
from Flower & Co.’s business account or from his personal funds. Moreover,
plaintiff noted that as Mr. Flower has now died, he was unable to provide any
testimony resolving the issue.
After a hearing, the district court denied defendant’s motion for summary
judgment, finding a genuine issue of fact existed as to whether plaintiff worked for
defendant “in his personal capacity, in his business capacity or in both his personal
and business capacity.”
Defendant applied for supervisory review. The court of appeal denied writs.
Upon defendant’s application to this court, we ordered written briefing
pursuant to the provisions of La. Code Civ. P. art. 966(H). Having received briefs
from both parties, we now review the district court’s ruling on the motion for
summary judgment on the merits.

DISCUSSION
A ruling on a mot ion for summary judgment is reviewed under a de novo
standard, with the appellate court using the same criteria that govern the district
court’s determination of whether summary judgment is appropriate, i.e., whether
there is any genuine issue of material fact, and whether the movant is entitled to
judgment as a matter of law. Catzen v. Toney, 2022-01261 (La. 1/18/23), 352 So.3d
972, 974; Jones v. Whips Elec., LLC , 2022-01035 (La. 11/22/22), 350 So.3d 846,
848; Guidry v. Brookshire Grocery Co., 2019-1999 (La. 2/26/20), 289 So.3d 1026,
1027. Pursuant to La. Code Civ. P. art. 966(D)(1), the burden on the party moving
for summary judgment “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.” Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So.

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3d 607, 610–11. When a motion for summary judgment is made and supported, an
adverse party may not rest on the mere allegations or denials of his pleadings, but
his response, by affidavits or otherwise, must set forth specific facts showing that
there is a genuine issue for trial. La. Code Civ. P. art. 967(B); Bufkin v. Felipe’s
Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851, 858. Once a 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. Dauzat v. Curnest Guillot Logging Inc ., 2008-0528 (La.
12/2/08), 995 So.2d 1184, 1187 (citing Babin v. Winn–Dixie Louisiana, Inc., 2000-
0078 (La. 6/30/00), 764 So.2d 37, 40).
In support of his motion for summary judgment, defendant introduced the
earlier settlement from the workers’ compensation proceeding showing plaintiff
accepted $8,500.00 from Mr. Flowers in exchange for partial dismissal of his
workers’ compensation claims and expressly stipulated he “wishes to dismiss Walter
C. Flower & Co., with prejudice, as they were not the proper employer.”
In C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003 (La. 12/3/03), 861 So.
2d 156, 159, we explained the concept of a judicial confession:
The definition of judicial confession is contained in
Article 1853 of the Civil Code, which provides:

A judicial confession is a declaration made
by a party in a judicial proceeding. That
confession constitutes full proof against the
party who made it. A judicial confession is
indivisible and it may be revoked only on the
ground of error of fact.

The well settled jurisprudence establishes that an
admission by a party in a pleading constitutes a judicial
confession and is full proof against the party making it.
Taboni ex rel. Taboni v. Estate of Longo, 01–2107 (La.
2/22/02), 810 So.2d 1142; Starns v. Emmons, 538 So.2d
275 (La. 1989); Smith v. Board of Trustees, 398 So.2d
1045 (La. 1981); Cheatham v. City of New Orleans, 378
So.2d 369 (La. 1979). A judicial confession has the effect
of waiving evidence as to the subject of the admission.

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Crawford v. Deshotels, 359 So.2d 118 (La. 1978); Jackson
v. Gulf Ins. Co., 250 La. 819, 199 So.2d 886 (1967);
Farley v. Frost–Johnson Lumber Co., 133 La. 497, 63 So.
122 (1913). A declaration made by a party’s attorney or
mandatary has the same effect as one made by the party
himself. La. Civ.Code art. 1853, cmt. (b). [emphasis
added].

In the instant case, the settlement in the workers’ compensation claim supports
defendant’s assertion that plaintiff believed he was employed by Mr. Flowers
personally and not by Flower & Co. That judgment of dismissal provides:
Octavio Diaz appears herein through undersigned counsel
and suggests to the Court that he wishes to dismiss without
prejudice his petition against Walter C. Flower.

Further, Octavio Diaz wishes to dismiss Walter C.
Flower & Co., with prejudice, as they were not the
proper employer.

Octavio Diaz reserves all rights for future workers’
compensation benefits against Walter C. Flower, III,
individually. [emphasis added].

This evidence is sufficient to satisfy defendant’s burden of establishing an
absence of factual support for one or more elements essential to plaintiff’s claim by
showing plaintiff admitted he was not employed by Flower & Co. and therefore must
have been employed by Mr. Flower in his individual capacity. Because this evidence
establishes Mr. Flowers, in his individu al capacity, is plaintiff’s employer, any tort
claims are precluded by the workers’ compensation exclusivity provisions.
At this point, the burden shifted the plaintiff to set forth specific facts showing
that there is a genuine issue for trial. Plaintiff relied primarily on his own deposition.
However, nothing in plaintiff’s deposition indicates he ever believed he was working
for Flower & Co. To the contrary, plaintiff testified he did not work at Mr. Flower’s
investment business in New Orleans. Further, plaintiff testified that he never asked
Mr. Flower if he was working for Mr. Flower individually or for Flower & Co.;
rather, plaintiff simply stated: “All I knew is that I worked for him . . . he just gave
me the orders of the work I needed to do . . . I just did the jobs he told me to do . . .

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[w]hen I met him; he told me that I was going to work for him.” This evidence is
insufficient to raise any genuine issues of material fact.
In sum, we find defendant has satisfied his burden on summary judgment by
establishing the absence of factual support for an essential element of plaintiff’s
claim. Plaintiff has not produced any evidence of a material factual dispute.
Summary judgment in favor of defendant is therefore mandated, dismissing
plaintiff’s tort claims.2

DECREE
For the reasons assigned, the writ is granted and made peremptory. The
judgment of the district court is reversed and summary judgment is granted,
dismissing the claims of plaintiff, Octavio Diaz -Molina, against defendant, Walter
C. Flower, III, with prejudice.

2 Our decision is limited t o plaintiff’s tort claims against Mr. Flowers individually and does not
affect any rights plaintiff may have to claim additional workers’ compensation benefits from Mr.
Flower in his capacity as plaintiff’s employer.