Mabron Esclovon v. Officers F. Fondel, L. McCullough

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-280

MABRON ESCLOVON, ET AL.

VERSUS

OFFICER F. FONDEL, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 98-5075
HONORABLE ROBERT L. WYATT, PRESIDING

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, John D. Saunders and Oswald A. Decuir,
Judges.

REVERSED AND REMANDED.

Rudie R. Soileau, Jr.
717 Pujo Street
Lake Charles, LA 70601
(337) 433-0110
COUNSEL FOR PLAINTIFF/APPELLANT:
Mabron Esclovon, et al.

Ronald Richard
One Lakeshore Drive, Suite 1800
Lake Charles, LA 70629
(337) 494-1900
COUNSEL FOR PLAINTIFF/APPELLANT:
Mabron Esclovon, et al.

Christopher Ieyoub
Plauche’, Smith & Nieset
P.O. Drawer 1705
Lake Charles, LA 70602-1705
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE
City of Lake Charles

Christopher Trahan
Frederick L. Cappel
Raggio, Cappel, Chozen & Berniard
1011 Lakeshore Drive, Suite 500
P.O. Box 820
Lake Charles, LA 70602-0820
(337) 436-9481
COUNSEL FOR DEFENDANT/APPELLEE
Southwest Louisiana Hospital Assoc. d/b/a Lake Charles Memorial Hospital

COOKS, Judge.

Plaintiff, Mabron Esclovon, appeals the trial court’s judgment granting Lake

Charles Memorial Hospital’s motion for summary judgment. For the following

reasons, we reverse the judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On the evening of August 8, 1998, Mabron Esclovon accompanied friends to

visit a patient in the emergency room at Lake Charles Memorial Hospital. After

visiting with the patient, Esclovon and his friends were walking through the parking

lot to depart the hospital grounds. Esclovon and his friends were ordered to stop by

two Lake Charles City Police Officers who were accompanied by a hospital security

guard. They stopped as ordered and were told by the officers they were to

immediately leave the hospital premises or face arrest. Esclovon asked why he was

being ordered to leave the hospital grounds. He was not given any explanation by the

officers, who simply reiterated the order to leave. Esclovon declined to comply with

what he believed was a baseless request and was arrested by the officers for

trespassing.

Earlier that evening, Robert Janice, a security guard at the hospital, was asked

to report to the emergency room because of a disturbance. Upon arriving at the

emergency room, Janice was told a dispute had arisen between the father and the

uncle of a female patient being treated at the facility. Janice overheard the uncle state

he was “going to call somebody and get a gun.” Janice contacted the police, who

arrived and discussed the situation with persons at the scene. The officers told Janice

to call them if anything further occurred.

Shortly thereafter, Janice was approached at his desk by a female member of

the patient’s family and was told the “family member – the ones that they called for

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the gun are here.” Janice immediately contacted the police for assistance. He then

went to the emergency room where Esclovon was standing in a group. That group

was pointed out to Janice as being the ones that had been called for the gun.

Janice waited for the police, and informed them of the situation. When the

officers and Janice went to the lobby of the emergency room, they saw Esclovon and

his friends walking in the parking lot area. The officers and Janice then approached

the group and the confrontation which resulted in Esclovon’s arrest occurred.

According to Janice, the officers asked him if he wanted the family members to leave,

and he said “yes.” Janice stated he did not specifically ask anyone to leave the

premises. The officers maintained they were asked by Janice to remove plaintiff and

his group from the hospital grounds.

Esclovon filed suit against the City of Lake Charles and the individual officers.

The City and officers defended their actions on the basis that the hospital’s security

guard had requested that the officers order Esclovon to leave the premises. Thus,

they argued, the officers were empowered to act by the hospital’s employee. As

stated earlier, Janice’s testimony differs from the testimony of the officers as to who

initiated the order directing Esclovon leave the premises. Esclovon testified he did

not hear the security guard ask the officers to remove him from the premises. Given

the conflicting testimony, Esclovon amended the original petition to also name

Southwest Louisiana Hospital Association d/b/a Lake Charles Memorial Hospital

(hereafter the Hospital) as a defendant in its capacity as the employer of the security

guard.

The Hospital filed an answer and a motion for summary judgment. Esclovon

filed a request for additional time to take the deposition of Larry North, the Hospital’s

Chief of Security. That request was granted. A hearing on the motion for summary

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judgment was held on October 23, 2003. At the hearing, the Hospital’s attorney

conceded the existence of a “truckload of factual disputes and all these depositions

that have been submitted concerning just what happened out at the hospital that

evening. . .” Realizing the presence of these disputed facts would preclude the

granting of summary judgment, the Hospital’s attorney argued as follows:

. . . the resolution of the Motion doesn’t depend on what factual scenario
you would choose to believe. Our argument, and perhaps its not stated
in the brief, is that I don’t see that the plaintiff has stated a cause of
action against the hospital.
...
As I read the petition, I cannot myself determine what cause of
action is stated against the hospital. I do not know if the plaintiff is
alleging that the hospital was negligent through Robert Janis [sic] or
through his actions in telling the police officers that he wanted Mr. – he
wanted the plaintiff off the premises. I do not know if its in the nature
of a slander suit against the hospital, a wrongful eviction. I simply do
not know what cause of action, if any, he stated against the hospital.
So my argument is simply this, that I don’t think a cause of action
has been stated, and I think a Motion for Summary Judgment would be
a proper vehicle to have the suit dismissed against the hospital.

At the conclusion of the hearing, the trial court issued the following oral reasons for

granting the Hospital’s motion for summary judgment:

Although I don’t have a whole bunch of history to draw on here
inasmuch as I’ve only been on the bench in less than ten months,
historically I want to say that I am against – I’m going to favor not
granting Motions for Summary Judgment because I think a trier of fact
in most situations should be the party to ultimately make the decision.
However, in this situation, while I agree with Mr. Soileau that what Mr.
Janis did or what the policy of Lake Charles Memorial Hospital is is
maybe not good policy, but I just fail to see where there’s an actionable
cause of action if what was done was done.
It’s terrible, they should not ask people to leave when there’s guilt
by association, but then that was a call that they made, and I just don’t
see an actionable cause of action right there.
I’m granting the Motion for Summary Judgment.

Although the trial court granted the motion for summary judgment (and the signed

final judgment dismissed plaintiff’s case on a motion for summary judgment), his

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reasons for ruling indicate the plaintiff’s case was dismissed for failure to state a

cause of action. Plaintiff has appealed the judgment contending it was improper to

dismiss his case on either a motion for summary judgment or an exception of no cause

of action.

ANALYSIS

On appeal, plaintiff does not question “the ability of the Hospital or the trial

court to treat the motion as a no cause of action defense; however, the decision to

treat the objection as such should alter the applicable standard on appeal.” Plaintiff

maintains on appeal that the lower court’s decision must be reversed whether based

on a grant of a motion for summary judgment or the sustaining of an exception of no

cause of action. We will examine the propriety of each motion.

Appellate courts review summary judgments de novo, under the same criteria

that governs the district court’s consideration of whether summary judgment is

appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783;

Lamoco, Inc. v. Hughes, 02-1498 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, writ denied,

03-2603 (La.12/12/03), 860 So.2d 1156. The threshold question in reviewing a trial

court’s grant of summary judgment is whether a genuine issue of material fact

remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ

denied, 98-50 (La.3/13/98), 712 So.2d 882.

Plaintiff based its claim for damages on the appropriateness of the stop and

arrest in the parking lot at Lake Charles Memorial Hospital. The officers, Janice and

Esclovon provide different versions of the events that led to the arrest. It was even

admitted by counsel for the Hospital that there were a “truckload of factual disputes”

on that issue. Therefore, summary judgment was not appropriate in this matter.

Next, we address the exception of no cause of action. In City of New Orleans

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v. Board of Comm'rs of Orleans Levee Dist., 93-690 (La.7/5/94), 640 So.2d 237, the

Louisiana Supreme Court set forth the following with regard to an exception of no

cause of action, including the applicable standard of review:

The purpose of an exception of no cause of action is to determine
the sufficiency in law of the petition. The exception is triable on the
face of the papers and for the purposes of determining the issues raised
by the exception, the well pleaded facts in the petition must be accepted
as true.

***

The burden of demonstrating that no cause of action has been
stated is upon the mover or exceptor. In deciding the exception of no
cause of action, the court must presume all factual allegations of the
petition to be true and all reasonable inferences are made in favor of the
non-moving party.

In reviewing a trial court’s ruling sustaining an exception of no
cause of action, the court of appeal and this court should subject the case
to de novo review because the exception raises a question of law and the
lower court’s decision is based only on the sufficiency of the petition.

In appraising the sufficiency of the petition we follow the
accepted rule that a petition should not be dismissed for failure to state
a cause of action unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of any claim which would entitle him to
relief. The question therefore is whether in the light most favorable to
plaintiff, and with every doubt resolved in his behalf, the petition states
any valid cause of action for relief. The petition should not be dismissed
merely because plaintiff’s allegations do not support the legal theory he
intends to proceed on, since the court is under a duty to examine the
petition to determine if the allegations provide for relief on any possible
theory.

As a practical matter, an exception of no cause of action is likely
to be granted only in the unusual case in which the plaintiff includes
allegations that show on the face of the petition that there is some
insuperable bar to relief. In other words, dismissal is justified only
when the allegations of the petition itself clearly demonstrate that the
plaintiff does not have a cause of action, or when its allegations indicate
the existence of an affirmative defense that appears clearly on the face
of the pleading.

Id. at 241, 253.
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For purposes of the no cause of action exception, all factual allegations in the

petition must be deemed to be true. Further, the reviewing court must resolve all

factual disputes in favor of the plaintiff.

Plaintiff’s amended petition set forth the following basis for liability on the part

of the Hospital:

On information and belief, SOUTHWEST LOUISIANA
HOSPITAL ASSOCIATION d/b/a LAKE CHARLES MEMORIAL
HOSPITAL, is the employer of Robert Janice, the security guard on duty
at that facility on the date of the incident. Robert Janice improperly and
wrongfully identified MABRON ESCLOVON to the LAKE CHARLES
POLICE DEPARTMENT officers as being involved in some type of
altercation unrelated to the instant matter and, on information and belief,
provided misinformation to the LAKE CHARLES POLICE
DEPARTMENT officers that caused or substantially contributed to the
events complained of in this petition. SOUTHWEST LOUISIANA
HOSPITAL ASSOCIATION d/b/a LAKE CHARLES MEMORIAL
HOSPITAL is therefore vicariously responsible for his conduct and the
damages consequential to that conduct.

In brief, the Hospital notes that “the critical issue for resolution is whether

Janice acted reasonably. How can it be seriously argued that Janice, possessing the

information he had obtained whether such information was right or wrong, acted

unreasonably in requesting that plaintiff be removed from the premises or acquiesced

in his removal?” Whether Janice acted reasonably is not an appropriate question at

this stage of the proceedings. Further, under the no cause of action exception, all

factual disputes must be resolved in favor of the plaintiff.

The Hospital also argued below that the basis for the cause of action against

it was not clear. Counsel for plaintiff notes the referenced petition and amendment

were prepared before the Hospital Chief of Security’s deposition was taken, and that

the pleadings can be further amended to more specifically state the cause of action

against the Hospital.1 La.Code Civ.P. art. 934 provides that “[w]hen the grounds of

1
Larry North, the Hospital’s Chief of Security, stated in his deposition that his security
guards should either witness misconduct or have specific instructions from a physician at the

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the objection pleaded by the peremptory exception may be removed by amendment

of the petition, the judgment sustaining the exception shall order such amendment

within the delay allowed by the court.” (Emphasis added.) Therefore, at a minimum

the plaintiff should have been allowed the opportunity to amend the petition in

response to the information discovered subsequent to the filing of the supplemental

petition.

However, after reviewing the record, we find the plaintiff clearly has a cause

of action against the hospital. We find the facts in this case very similar to those in

Lebowitz v. Sheraton Operating Corp., 03-2174 (La.App. 4 Cir. 2/11/04), 868 So.2d

164. In Lebowitz, a man entered the Sheraton Hotel on Super Bowl Sunday allegedly

to get a shoeshine. The hotel believed he was scalping tickets to the game. A hotel

security guard asked him to leave and he refused. The plaintiff stated he agreed to

leave but not until he could speak with a manager. Plaintiff then alleged he was

dragged into the street with his pants legs still rolled up. The guard called the police,

and the plaintiff was arrested and charged with trespassing. The plaintiff filed suit,

essentially alleging false arrest, but specifically alleging that the hotel made false

statements causing the arrest, failed to determine his purpose in the hotel, acted rashly

and arbitrarily, and slandered him. The hotel filed a motion for summary judgment

on the basis that Louisiana’s trespass laws allow the hotel to ask anyone to leave.

The trial court denied the motion, and the hotel appealed. The appellate court denied

the hotel’s motion for summary judgment stating as follows:

Here, there are obvious facts in dispute about whether the hotel
threw the plaintiff out on the street after he asked to see a manager,
whether he refused to leave, and what statements the guard made to
NOPD. The trespassing statute does not shield the hotel from potential
civil liability. Even if the statute gives the hotel authority to ask persons
to leave, it does not give it the authority to make false statements to the

facility before ordering a visitor off the premises.

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police leading to persons’ arrests.

Id. at 166. (Emphasis added.)

Esclovon’s petition states the Hospital’s security guard “provided

misinformation to the Lake Charles Police Department officers” which led to his false

arrest for trespassing. There is testimony in the record that Esclovon committed no

misconduct, and there are statements from the Hospital’s Security Director to imply

that the security guard violated his employer’s policies in requesting Esclovon’s

expulsion from the premises. Mindful that all factual disputes must be resolved in

favor of the plaintiff, we find the trial court erred in finding the allegations of the

petition itself clearly demonstrate that the plaintiff does not have a cause of action.

It also erred in granting the motion for summary judgment. Genuine issues of

material fact exist for trial.

ANALYSIS

For the foregoing reasons, the judgment of the trial court sustaining the motion

for summary judgment is reversed and the matter is remanded to the trial court for

further proceedings consistent with the views expressed in this opinion. Costs of this

proceeding are assessed against appellee, Lake Charles Memorial Hospital.

REVERSED AND REMANDED.

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