Gilbert Douglass v. Dr. James H. Easton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1404

GILBERT DOUGLASS

VERSUS

DR. JAMES H. EASTON & THE LAFAYETTE PARISH SCHOOL BOARD

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 200443605
HONORABLE DURWOOD CONQUE,
DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Glenn B. Gremillion, and J. David Painter,
Judges.

REVERSED AND RENDERED.

Anthony J. Fontana
210 N. Washington St.
Abbeville, LA 70510
Counsel for Plaintiff-Appellant:
Gilbert Douglass

L. Lane Roy
Dawn L. Morris
Tori E. Sherer
102 Versailles Blvd, Ste. 400
Lafayette, LA 70509
Counsel for Defendant-Appellee:
Lafayette Parish School Board

Painter, Judge.

The Plaintiff, Gilbert Douglass, appeals the trial court’s judgment dismissing

his breach of contract suit pursuant to a motion for summary judgment filed by the

Defendant, Lafayette Parish School Board (School Board). Finding that the School

Board has not carried its burden under La.Code Civ. P. arts. 966 and 967, we reverse

the judgment and remand to the trial court.

FACTS AND PROCEDURAL HISTORY

In May 1999, after serving as assistant principal at Carencro Middle School for

several years, Douglass was appointed principal at that school, and he and the School

Board entered an employment contract for a period of two years, beginning August

5, 1999 and ending August 4, 2001. The contract was renewed under the same terms

for a period beginning August 4, 2001 and ending August 3, 2005. Effective July 21,

2003, Douglass was transferred to the position of assistant principal at Comeaux High

School at the same compensation he had received as Principal. On July 23, 2004, he

filed this suit for breach of the contract executed in connection with his retention as

principal of Carencro Middle School. On September 21, 2005, he signed a two year

contract for the position of assistant principal of Comeaux High School.

The School Board filed a motion for summary judgment asserting that no

material issue of fact remained because Douglass was not terminated or demoted, that

because a new contract was negotiated, Douglass was not entitled to written charges,

notice, or a hearing, that Douglass acquiesced to his new assignment by signing a new

contract and cannot now complain of his decision, and that, by law, Douglass is not

entitled to non-pecuniary damages. The School Board supported its motion with

copies of the employment contracts and an affidavit of Ramona Bernard, Director of

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Human Resources for the School Board, certifying the correctness of the copies of the

contracts. Douglass filed a memorandum in opposition to the motion for summary

judgment asserting that by its terms the contract required that he be removed only for

incompetence, inefficiency, or failure to fulfill the terms and performance objectives

of the contract and mandated that he be transferred only to “another position of equal

pay, rand and responsibility.” He argued that his transfer to an assistant principal

position was, in fact, a termination and, as such, required written notice and a hearing

pursuant to La.R.S. 17:444. Douglass asserted in the memorandum that he did not

sign the contract for the assistant principal position voluntarily, and, as a result, did

not thereby acquiesce in his transfer. Douglass did not, however, submit affidavits,

deposition testimony, or other documentation in support of his opposition

memorandum.

After a hearing, the trial court granted the motion for summary judgment and

rendered judgment dismissing Douglass’ claims against the School Board. Douglass

appeals.

DISCUSSION

Summary Judgment

The summary judgment procedure is designed to secure the just,
speedy, and inexpensive determination of every action, except those
disallowed by law; the procedure is favored and must be construed to
accomplish these ends. La. C.C.P. art. 966(A)(2); Yarbrough v. Federal
Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d
482. The motion should be granted only if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
affidavits, show that there is no genuine issue of material fact and that
the mover is entitled to judgment as a matter of law. La. C.C.P. art.
966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98),
707 So.2d 459. The burden of proof remains with the mover. However,
if the party moving for summary judgment will not bear the burden of
proof at trial on the matter that is before the court on the motion for
summary judgment, then that party need not negate all essential

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elements of the adverse party's claim, action, or defense but may simply
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party's claim, action, or
defense; thereafter, if the adverse party fails to produce factual support
sufficient to establish that it will be able to satisfy the evidentiary burden
of proof at trial, there is no genuine issue of material fact. See, La.
C.C.P. art. 966(C)(2). When a motion is made and supported, as
required by La. C.C.P. art. 966, an adverse party may not rest on the
mere allegations or denials of his pleadings, but his response must set
forth specific facts showing a genuine issue for trial. Otherwise,
summary judgment, if appropriate, shall be rendered against him. La.
C.C.P. art. 967.

Appellate courts review summary judgments de novo under the
same criteria that govern a district court's consideration of whether
summary judgment is appropriate. Kennedy v. Holder, 33,346
(La.App.2d Cir.05/10/00), 760 So.2d 587.

Sidwell v. Horseshoe Entm't Ltd. P'ship, 35,718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811

So.2d 229, 230-31, quoted in Semien v. EADS Aeroframe Services, LLC, 04-760, pp.

2-3 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17.

Douglass did not support his opposition to the motion for summary judgment

with depositions or affidavits.

An adverse party to a supported summary judgment may not rest on the
mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided above, must set forth specific facts
showing that there is a genuine issue of material fact for trial. La.Code
Civ.P. art. 967.

Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

In this case, Douglass asserted at the hearing that no affidavits were necessary

because the School Board was not entitled to judgment as a matter of law under the

terms of the contract. Because this case turns on the employment contract and

actions not in dispute, i.e., the signing of a contract for the position of Vice-Principal

at Comeaux High School, we will examine de novo the contentions of the School

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Board to determine whether issues of fact remain and whether the School Board is

entitled to summary judgment as a matter of law.

Acquiescence

The School Board asserts that no question of fact remains but that Douglass

acquiesced in his transfer by signing a new contract for the position of assistant

principal of Comeaux High School in September 2005. The School Board argues that

by so doing Douglass lost his claim for breach of contract including failure to comply

with the notice and hearing requirements of the contract. It is apparently the position

of the School Board that the contract for employment as assistant principal of

Comeaux High School, which contains neither reservation of rights nor indication

that it was signed under protest and to which Douglass’ signature is affixed, is prima

facie evidence of Douglass’ acquiescence in the transfer. The School Board asserts

that acquiescence in the action of the School Board would ordinarily conclude

Douglass’ right to proceed for breach of contract. Normally, by signing the contract

of employment, Douglass accepted the school board’s terms and the position of

assistant-principal. See Smith v. Evangeline Parish School Bd., 95-284 (La.App. 3

Cir. 10/4/95). Douglass asserted in his opposition to the motion for summary

judgment that he was coerced into signing the contract because he could not continue

to work and collect his salary if he did not sign. However, if School Board had

carried its burden of showing an acquiescence, the burden would have shifted to

Douglass to come forth with evidence in the form of affidavits or discovery responses

raise an issue of fact with regard to whether he was coerced into signing the contract,

that he reserved his right to pursue his breach of contract claim, or that he signed

under protest. He could not rest on the allegations made in his pleadings or

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memoranda. See La.Code Civ.P. arts. 966 & 967. However, it is clear on the face

of the contracts that Douglass only signed a new contract for the position of vice-

principal after the term of his contract for the position of principal had expired. The

School Board does not cite, and we cannot find, any jurisprudence which would

suggest that a party who sues for breach of an employment contract cannot, without

waiving his rights, sign a new contract with his employer after the expiration of the

term of the contract sued upon. Therefore, we conclude that the School Board is not

entitled to summary judgment as a matter of law based on acquiescence.

Non-pecuniary Damages

Citing jurisprudence to the effect that damages for non-pecuniary losses are not

available for breach of an employment contract, the School Board asserts that it is

entitled to summary judgment because no question of fact remains but that Douglass

asked only for damages arising from non-pecuniary losses.

The School Board is correct in its assersion that non-pecuniary losses cannot

be recovered for breach of a contract not intended to gratify a non-pecuniary interest

unless “‘the obligor knew, or should have known, that his failure to perform would

cause that kind of loss.’ La.Civ.Code art.1998.” Richard v. Gary Matte Builders,

Inc., 06-0808, p. __ (La.App. 3 Cir. 11/8/06), ___ So.2d ___, ___.

Douglass, in his petition for damages, alleges the following damages:

a. Mental anguish, humiliation and embarrassment;

b. Damages to his professional reputation and loss of esteem among
the public;

c. Damage to future promotions and ability to obtain similar or
better employment in the Parish or else where (sic);

d. Change of job requiring a change of duties, loss of prestige, loss
of opportunity to direct educational direction of school;

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e. Loss of years of experience as a principal which also affect
promotional opportunities.

Reviewing these allegations, we cannot say that they represent only non-

pecuniary interests, in that a question remains as to whether with loss of promotion

Douglass also suffered loss of concomitant salary increases. Nothing in the

supporting documents filed by the School Board deals with this question. The School

Board merely attached a copy of Douglass’s petition for damages to its memorandum

in support of its motion for summary judgment. Accordingly, we cannot say that the

School Board has shown that no question of fact remains in this regard. Therefore,

we find that the School Board is not entitled to summary judgment on this basis.

CONCLUSION

Finding that the School Board has not shown that it is entitled to summary

judgment as provided by La.Code Civ. P. arts. 966 and 967, we reverse the trial

court’s grant of the School Board’s motion for summary judgment. This matter is

remanded to the trial court for further proceedings. Costs of this appeal are to be paid

by the Lafayette Parish School Board.

REVERSED AND RENDERED.

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