Dwight Phillips and Joy Phillips, Indiv., Etc. v. Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-373

DWIGHT PHILLIPS AND JOY PHILLIPS, INDIV., ETC.

VERSUS

LAFAYETTE PARISH SCHOOL BOARD, ET AL.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20084227
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Jarvis Jerome Claiborne
Kenneth M. Willis
814 North Main Street
Opelousas, LA 70571-1033
Telephone: (337) 948-4336
COUNSEL FOR:
Plaintiffs/Appellants - Dwight Phillips, Joy Phillips, and Joseph
Shelvin

Dawn L. Morris
Law Office of Dawn L. Morris
1106 Coolidge Boulevard - Suite A
Lafayette, LA 70503
Telephone: (337) 704-2094
COUNSEL FOR:
Defendants/Appellees - Lafayette Parish School Board and Dr.
Louella Cook, Indiv., Etc.

THIBODEAUX, Chief Judge.

Appellants, Dwight and Joy Phillips, individually, and on behalf of their

minor son, Joseph Shelvin, assert that the trial court erred by striking their opposition

to a motion for summary judgment and an affidavit attached to it, by granting a

summary judgment in favor of Lafayette Parish School Board (the Board) and Louella

Cook, and by relying on an affidavit not based on personal knowledge. For the

following reasons, we affirm.

I.

ISSUES

We shall consider whether the trial court erred by:

(1) striking Appellants’ opposition to a motion for
summary judgment and an affidavit attached to it
where the trial court held a hearing over four months
after Appellees filed the motion and the Appellants
filed their opposition three days before the hearing;
and,

(2) granting Appellees’ unopposed motion for summary
judgment on the claims of defamation and
intentional infliction of emotional distress.1

II.

FACTS

In August of 2007, Dwight was dropping off his step-son, Joseph

Shelvin, at the school’s bus-unloading area. The school’s principal, Louella Cook,

was on duty that day. After noticing Dwight’s vehicle, she approached it and advised

1
Appellants also argued that the trial court erred by relying on an affidavit not based on
personal knowledge. “[A]n appellate court may not decide issues the trial court did not consider.”
Ducote v. Union Pac. R.R. Co., 08-1208, p. 9 (La.App. 3 Cir. 2/4/09), 4 So.3d 240, 247, writ denied,
09-940 (La. 6/5/09), 9 So.3d 877 (citing Gorham v. Mathieson Alkali Works, Inc., 27 So.2d 299
(La.1946)). Here, Appellants neither objected to the introduction of the affidavit, nor did they file
a motion to strike it. Under the circumstances of this case, we decline to consider the issue because
it is not properly before this court.

Dwight that he was unloading the child in the wrong area. Cook then directed him

to the car drop-off area. Then, according to Cook, Dwight began screaming at Cook,

and, during this screaming, Dwight told Cook that he would return and “get her.”

Fearing for her safety and the safety of the staff and visitors of the

school, Cook contacted the police. The investigating officer, after an interview with

Cook, interviewed Dwight. In the course of that interview, according to the officer,

Dwight admitted that he threatened Cook. Relying on both Cook’s complaint and

Dwight’s admission, the officer arrested Dwight for disturbing the peace by threats.

According to Cook, sometime prior to this incident, a bus driver reported

that during a bus stop a man, who was talking loudly, got on the bus and refused to

get off the bus. To determine the identity of the man, Cook and her staff questioned

students who were present on the bus at the time of the incident. One of the students

was Joseph Shelvin. After speaking with the students, Cook and her staff learned that

the man was Dwight Phillips. At no time was Cook alone with any of the students,

and no interview lasted over ten minutes.

After Dwight’s arrest, Appellants filed the suit asserting various causes

of action. Some of them were dismissed, and the only causes of action subject to this

appeal are Dwight’s defamation and Joseph Shelvin’s intentional infliction of

emotional distress. The Board and Cook motioned for summary judgment on these

claims in June of 2009. To support the motion, they submitted Cook’s and the police

officer’s affidavits describing the events.

After rescheduling several times, the trial court ultimately scheduled the

hearing for November 9, 2009. Appellants filed their opposition and an affidavit on

Friday, November 6, 2009. The Board and Cook motioned to strike these late filings,

and the trial court granted the motion. Then, the trial court granted a summary

judgment in favor of the Board and Cook.
2

III.

STANDARD OF REVIEW

Appellate courts review for abuse of discretion the trial court’s exclusion

of an opposition to a motion for summary judgment. Higginbotham v. Rapides

Found., 07-538 (La.App. 3 Cir. 10/31/07), 968 So.2d 1226. Appellate courts review

summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App.

3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La. 10/17/97), 701 So.2d

1327.

IV.

LAW AND DISCUSSION

(1) Motion to Strike for Untimeliness

Unless the trial court sets a shorter time, the party opposing the motion

for summary judgment must serve the opposing affidavits and memorandum in

support at least eight calendar days before the hearing. La.Code Civ.P. art. 966(B)2;

District Court Rules, Rule 9.9(b). “The time limitation established by La. C.C.P. art.

966(B) for the serving of affidavits in opposition to a motion for summary judgment

is mandatory; affidavits not timely filed can be ruled inadmissible and properly

excluded by the trial court.” Buggage v. Volks Constructors, 06-175, p. 1 (La.

5/5/06), 928 So.2d 536, 356 (citing Am. Bank & Trust Co. v. Int’l Dev. Corp., Inc.,

506 So.2d 1234 (La.App. 1 Cir.1987)). See also Guillory v. Chapman, 10-1370 (La.

9/24/10), __So.3d__ (reversing this court and holding that the trial court did not

2
The recent changes to La.Code Civ.P. art. 966 altered the language of the article’s timing
provisions. Instead of explicitly stating the time limit, the amended La.Code Civ.P. art. 966 directs
one to the District Court Rule 9.9. The District Court Rule 9.9, in turn, supplies the eight-day time
limit. Because under the old and the new versions of La.Code Civ.P. art. 966 the time limit is the
same, this court does not need to address whether the amendment was procedural and, therefore,
retroactive.

3

abuse its discretion by deciding to follow the mandatory language of La.Code Civ.P.

art. 966(B) regarding timing).

The supreme court’s language indicates that the trial courts have some

discretion to allow the late-filed materials. Nevertheless, these decisions indicate that

it is not an abuse of discretion to disallow the late-filed materials because of the

statute’s mandatory language.

Here, the hearing on the motion for summary judgment occurred over

four months after the motion’s filing. Appellants requested and were granted a

continuance. Yet, they filed their opposition and affidavit three days before the

hearing, and on the Friday preceding a hearing on Monday. The trial court did not

abuse its discretion when it granted Appellees’ motion to strike the untimely

opposition and affidavit.

(2) Motion for Summary Judgment

Summary judgment shall be rendered if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that 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. 966(B). Although the burden of

proof remains with the movant, if the movant will not bear the burden of proof at

trial, the movant need not negate all essential elements of the adverse party’s claim,

action, or defense. La.Code Civ.P. art. 966(C)(2). Instead, the movant must only

point out that there is an absence of factual support for one or more elements essential

to the adverse party’s claim, action, or defense. Id.

If the movant has made a prima facie case that the motion should be

granted, the burden shifts to the adverse party to produce enough evidence to show

that some issues of material fact remain. Hutchinson v. Knights of Columbus,

4

Council No. 5747, 03-1533 (La. 2/20/04), 866 So.2d 228. If the non-moving party

fails to produce the evidence sufficient to raise an issue of material fact, the court

must grant the motion as a matter of law. Id.

Once the movant satisfied his initial burden, the non-moving party may

not simply rely on the allegations or denials contained in the pleadings. La.Code.

Civ.P. art. 967; Ardoin v. Pitre, (La.App. 3 Cir. 1983), 430 So.2d 815. Instead, the

non-moving party must submit affidavits or other evidence or state specific facts that

would show a genuine issue for trial. Id.

(A) Intentional Infliction of Emotional Distress (IIED)

The essential elements of an IIED claim are: (1) intent to cause (2)

severe emotional distress by (3) extreme and outrageous conduct. White v. Monsato

Co., 585 So.2d 1205 (La.1991). “The conduct must be so outrageous in character,

and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious and utterly intolerable in a civilized community.” Id. at 1209.

Merely tortious or illegal conduct does not rise to the level of extreme and

outrageous. Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00), 765 So.2d 1017.

Thus, “[l]iability does not extend to mere insults, indignities, threats, annoyances,

petty oppressions, or other trivialities.” White, 585 So.2d at 1209. “The distress

suffered must be such that no reasonable person could be expected to endure it.” Id.

at 1210.

Here, Appellees submitted Cook’s affidavit that on the day of the

incident she simply directed Phillips to drop off his son at the proper area. She

further attested that she did not speak with Joseph Shelvin, Phillips’s step-son, about

this incident. She and several members of her staff questioned Joseph Shelvin and

other students about the incident that occurred several days earlier. That was the

5

incident where a man refused to get off the school bus. Cook stated that she and her

staff, in an attempt to ascertain the identity of the man, questioned the students who

were on the bus at the time of the incident. At no time was Cook alone with any of

the students, and no interview lasted over ten minutes. Based on this, this court

concludes that Appellees carried their initial summary judgment burden.

The next question is whether Appellants sustained their burden of

producing evidence sufficient to raise an issue of material fact. The only evidence

in the record are Cook’s and the arresting officer’s affidavits. Appellants’ opposition

to the summary judgment and Phillips’s affidavit were stricken from the record as

untimely. Therefore, Appellants did not sustain their burden of production. Based

on these considerations, the trial court committed no error by granting Appellees’

motion.

(B) Defamation

The elements of a defamation claim are: (1) false and defamatory

statement about another; (2) an unprivileged publication to a third party; (3) fault on

the part of the publisher; and, (4) resulting injury. Trentecosta v. Beck, 96-2388 (La.

10/21/97), 703 So.2d 552. Statements that expressly or implicitly accuse another of

criminal conduct are defamatory per se. Kennedy v. Sheriff of E. Baton Rouge, 05-

1418 (La. 7/10/06), 935 So.2d 669 (citing Costello v. Hardy, 03-1146 (La. 1/21/04),

864 So.2d 129; Cangelosi v. Schwegmann Bros. Giant Super Mkts., 390 So.2d 196

(La.1980)). Fault and injury are presumed when the plaintiff shows a publication of

statements defamatory per se. Id. (citing Costello, 864 So.2d 129).

In some cases, conditional privilege is a defense to a defamation action.

Id. “The doctrine of privilege rests upon the notion that sometimes, as a matter of

public policy, in order to encourage the free communication of views in certain

6

defined instances, one is justified in communicating defamatory information to others

without incurring liability.” Id. at 681 (citing Toomer v. Breaux, 146 So.2d 723

(La.App. 3 Cir. 1962)).

To determine whether the conditional or qualified privilege exists,

“[f]irst, it must be determined whether the attending circumstances of a

communication occasion a qualified privilege.” Id. at 682 (citation omitted). Next,

the court must determine whether the privilege was abused. Id. (citing Smith v. Our

Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730). Grounds for

abuse are malice or lack of good faith. Id.

Qualified privilege exists when a possible criminal activity is reported

to the proper authorities, provided that the report was made in good faith. Kennedy,

935 So.2d 669 (citations omitted). Thus, where a private, non-public figure plaintiff

brings an action against a private, non-media defendant who spoke on the matter of

public concern (the report to law enforcement of suspected criminal activity), the

defendant may assert qualified privilege as a defense. Id.

The privilege’s effect is to rebut the allegations of malice or fault and to

shift the burden of proof onto the plaintiff to establish abuse of the privilege. Id.

(citing Smith, 639 So.2d 730). The plaintiff may establish the defendant’s abuse of

the privilege by showing that the defendant either knew the matter to be false or acted

in reckless disregard as to its truth or falsity. Id. (citing Trentecosta, 703 So.2d 552).

The showing of mere negligence is insufficient. Id.

Here, because Cook and the Board assert an affirmative defense of

conditional privilege, they have the burden of proof. It is undisputed that Cook

reported Phillips’s alleged threats to the police. That communication of an allegedly

criminal activity was on the matter of public concern to the proper authorities. Thus,

the circumstances surrounding the publication to the third party occasioned a
7

qualified privilege. Therefore, the burden shifted onto Phillips to prove that Cook

abused the privilege.

By submitting Cook’s and the police officer’s affidavits, Appellees made

a prima facie case that their motion for summary judgment should be granted.

Phillips, because the publication accused him of criminal conduct, was entitled to a

presumption in his favor on the elements of falsity, fault, and injury. Nevertheless,

Appellees’ supported assertion of privilege rebutted Phillips’s allegations of fault and

shifted onto Phillips the burden of establishing Cook’s abuse of the privilege. While

in the petition Phillips alleged that he never threatened Cook, he submitted no

evidence whatsoever. At this point, Phillips could not rely on mere allegations in his

pleadings. Instead, he had to produce some evidence which would show a disputed

issue of material fact. He failed to do so, and, therefore, the trial court committed no

error by granting Appellees’ motion for summary judgment.

V.

CONCLUSION

Summary judgment in favor of Lafayette Parish School Board and

Louella Cook is affirmed. Costs of this appeal are assessed to Dwight and Joy

Phillips.

AFFIRMED.

8