Felix Anthony Dejean, IV v. Bradley R. Burget

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-238

FELIX ANTHONY DEJEAN, IV

VERSUS

BRADLEY R. BURGET

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 49837
HONORABLE ROBERT W. KOSTELKA, DISTRICT JUDGE, AD HOC

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Elizabeth A. Pickett,
Judges.

REVERSED AND REMANDED.

Erik R. Noland
DeJean & Norris, L.L.C.
604 Saint Ferdinand Street
Baton Rouge, LA 70802
(225) 344-2639
COUNSEL FOR PLAINTIFF/APPELLANT:
Felix Anthony DeJean, IV

Joseph A. Boothe
Smith, Taliaferro & Purvis
P. O. Box 298
Jonesville, LA 71343
(318) 339-8526
COUNSEL FOR DEFENDANT/APPELLEE:
Bradley R. Burget

Felix Anthony DeJean, IV (In Proper Person)
DeJean & Norris, L.L.C.
604 Saint Ferdinand Street
Baton Rouge, LA 70802
(225) 344-2639
COUNSEL FOR PLAINTIFF/APPELLANT:
Felix Anthony DeJean, IV

Felix Anthony DeJean, III
Attorney at Law
1368 Katherine Drive
Opelousas, LA 70570
(337) 945-1454
COUNSEL FOR PLAINTIFF/APPELLANT:
Felix Anthony DeJean, IV

SAUNDERS, Judge.

This is a case involving a physical altercation between two parties wherein

the plaintiff alleges injury. The defendant raised the defense of justification based

on an assertion that the plaintiff was the aggressor. The defendant moved for and

was granted a motion for summary judgment dismissing the plaintiff’s claim against

him. Plaintiff appeals. We reverse and remand.

FACTUAL AND PROCEDURAL HISTORY:

Appellant, Felix Anthony DeJean, IV, was representing a client in a criminal

case in the 7th Judicial District Court in Vidalia, Concordia Parish, Louisiana. The

State was represented by Concordia District Attorney Bradley R. Burget, hereinafter

Appellee. While discussing the case in the chambers of Judge Kathy Johnson,

Appellant and Appellee had a physical altercation.

As a result of this altercation, Appellant was charged with and convicted of

simple battery after a criminal trial. Thereafter, Appellant filed suit against Appellee

alleging damages from the physical altercation. In his answer to the suit, Appellee

filed a defense of justification based on the allegation that Appellant was the

aggressor in the altercation. After discovery, Appellee filed a Motion for Summary

Judgment requesting that Appellant’s case be dismissed. A hearing on the motion

was held and resulted in the trial court granting Appellee’s motion dismissing

Appellant’s suit against him. It is from this judgment that Appellant presents three

assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in granting summary judgment in favor of
Appellee as there are material facts in dispute.

2. The trial court erred in granting summary judgment in favor of
Appellee based on the fact that Appellant would not be able to
prove his case by preponderance of the evidence.

3. The trial court erred by granting summary judgment based on the
credibility of Mr. DeJean as a witness.

DISCUSSION OF THE MERITS:

Appellant raises three assignments of error that each contend that the trial

court erred in granting summary judgment in favor of Appellee, but for different

reasons. We will address all three under one heading as each assigned error is merely

an argument for the alleged erroneous grant of summary judgment, which is

analyzed using the same standard of review.

Appellate courts review motions for summary judgment de novo, using the

identical criteria that govern the trial court’s consideration of whether summary

judgment is appropriate. Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880. The

reviewing court, therefore, is tasked with determining whether “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.Code

Civ.P. art. 966(A)(3).

The burden of proof rests on the mover for summary judgment;
all doubts are resolved against him. Nor is summary judgment intended
to be used as a vehicle to circumvent trial of genuine issues even where
it might appear to the court that the pleadings are frivolous and the party
so pleading has little chance of success at trial.

Bernard v. Vidrine, 365 So.2d 525, 526 (La.App. 3 Cir.1978) (citations omitted).

Further, regardless of the declaration that the summary judgment procedure is

favored, it is not a substitute for trial on the merits. Barber v. La. Mun. Risk Mgmt.

Agency Grp. Self-Insured Fund, 17-1005 (La.App. 3 Cir. 4/18/18), 244 So.3d 56.

In the case before us, Appellant brought a claim against Appellee for damages

as a result of Appellee allegedly battering Appellant. Appellee answered the

allegations with a defense that Appellant was the aggressor in the physical

altercation, and, as such, Appellee had justification for battering Appellant. Thus,

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which of the two combatants was the aggressor is a genuine issue of fact material to

the outcome of the litigation.

Appellee and various other witnesses testified to Appellant either verbally or

physically being the aggressor in this matter. However, Appellant testified to the

following in his criminal matter related to this altercation:

A I didn’t lay a finger on Burget.

....

A I didn’t touch him.

....

Q Did you ever chest bump Mr. Burget?

A I didn’t touch Mr. Burget.

At the end of his testimony at the criminal trial, when discussing why

Appellant’s testimony was different than that of each other witness, the following

exchange took place between Appellant and opposing counsel:

Q So it is your testimony that the only person who has told the truth
today, is you, Mr. DeJean; is that correct?

A One hundred percent.

Additionally, Appellant submitted an affidavit which states, “[a]t no time did

I strike Mr. Burget or defend myself in any way.” Finally, Appellee’s brief

recognizes that Appellant testified that he was not the aggressor writing, “[n]ot one

witness – save his own self-serving testimony in his criminal trial – has offered any

testimony that Mr. Burget was the aggressor.”

Given the above, it was improper for the trial court to have granted summary

judgment in this case.

When considering a motion for summary judgment, the court
cannot “consider the merits, make credibility determinations, evaluate
testimony[,] or weigh evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-
1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v.
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Lafayette City-Parish Consol. Gov’t, 04-1459, p. 11 (La. 4/12/05), 907
So.2d 37, 48 ). Moreover, although “summary judgments are now
favored, factual inferences reasonably drawn from the evidence must
be construed in favor of the party opposing the motion, and all doubt
must be resolved in the opponent’s favor.” Willis v. Medders, 00-2507,
p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

Bowdoin v. WHC Maint. Servs., Inc., 17-150, pp. 4-5 (La.App. 3 Cir. 10/25/17), 230

So.3d 232, 236.

Here, Appellant’s recount of the event that he was a pacifist while Appellee

was the sole aggressor is enough to defeat summary judgment. To find otherwise

would entail considering the merits via making credibility determinations,

evaluating testimony, or weighing evidence, which are impermissible when using

the summary judgment procedure.

CONCLUSION:

Felix Anthony DeJean, IV asserts three assignments of error that the trial court

erroneously granted summary judgment dismissing his claim against Bradley R.

Burget. We find merit to the assertion that summary judgment was improper given

the record before us. As such, we reverse the summary judgment granted to Bradley

R. Burget and remand the case for further proceedings consistent with this opinion.

Costs of this proceeding is assessed to Bradley R. Burget.

REVERSED AND REMANDED.

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