Stephens Tps, Inc. and Commerce & Industry Insurance Company v. Robert Lapoint

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-370

STEPHENS TPS, INC., ET AL.

VERSUS

ROBERT LAPOINT

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APPLICATION FOR SUPERVISORY WRIT FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2020-0087
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and Charles G.
Fitzgerald, Judges.

WRIT GRANTED IN PART AND MADE PEREMPTORY;
WRIT DENIED IN PART

Robert A. Dunkelman
Marshall Perkins
Pettiette, Armand, Dunkelman,
Woodley, Byrd & Cromwell, L.L.P.
400 Texas Street, Suite 400
Shreveport, Louisiana 71166
(318) 221-1800
Counsel for Defendants-in-Reconvention/Relators:
Stephens TPS, Inc., and
Commerce and Industry Insurance Company

Aaron Broussard
Steven Broussard
Broussard & Williamson
1301 Common Street
Lake Charles, Louisiana 70601
(337) 439-2450
Counsel for Plaintiffs-in-Reconvention/Respondents:
Katelyn LaPoint, Ashlyn LaPoint, and Chelsea LaPoint

FITZGERALD, Judge.

Relators, Stephens TPS Inc. (Stephens TPS) and Commerce and Industry

Insurance Company (C&I), seek supervisory review of the trial court’s November

16, 2021 partial summary judgment in favor of Respondent, Robert LaPoint

(LaPoint). Relators also seek supervisory review of the trial court’s February 27,

2020 preliminary injunction.1

This case involves a long-running dispute over a claim for reimbursement of

workers’ compensation benefits that were paid to LaPoint following a serious work-

related accident. The litigation has been ongoing in Louisiana and Georgia for more

than a decade.

LaPoint was injured in 2012 while on a work assignment in Georgia.

LaPoint’s employer, Stephens TPS, and its insurer, C&I, paid workers’

compensation benefits to LaPoint in Georgia and thereafter under Louisiana law.

After LaPoint filed a tort action in Georgia against several third-party defendants,

Relators intervened in that suit seeking reimbursement for the workers’

compensation benefits that they had paid to LaPoint.

In April 2015, LaPoint and the tortfeasor defendants reached a mediated

settlement. However, because the amount due to Relators as workers’ compensation

intervenors remained unresolved, LaPoint and Relators agreed in a Settlement

Memorandum that the contested funds would be kept in Nelson Tyrone’s trust

account pending adjudication of the issue. Nelson Tyrone was LaPoint’s attorney

in Georgia.

1
This memorandum opinion is issued in compliance with Uniform Rules, Courts of Appeal,
Rule 2-16.1(B). Also, LaPoint passed away on July 28, 2021. His three daughters have been
substituted as Respondents in his stead. However, for consistency and ease of reference, we will
continue to refer to LaPoint in the singular in this memorandum opinion.

According to LaPoint, at some point thereafter, the subject funds were moved

to Louisiana so that Nelson Tyrone could close his file. LaPoint’s Louisiana

attorney, Aaron Broussard, transferred the funds to his law firm’s bank account in

Lake Charles.

Many years later, in November 2019, Relators’ reimbursement claim against

LaPoint was adjudicated by the Louisiana workers’ compensation judge (WCJ). The

judgment of the WCJ specifically states that Relators “are entitled to reimbursement

from the amount currently held in the escrow account of Robert Lapoint’s attorney,

Aaron Broussard, in the amount of $570,941.00, representing workers’

compensation lien reimbursement, plus legal interest from the date of Judgment until

paid.” In response, LaPoint filed a motion for devolutive appeal. See LaPoint v.

Commerce & Indus. Ins. Co., 20-388 (La.App. 3 Cir. 6/9/21), 323 So.3d 428, rev’d,

21-995 (La. 11/23/21), 328 So.3d 64.

Two months later, in January 2020, Relators filed the suit that is now before

us on review. More particularly, Relators initiated an executory proceeding in the

trial court below to enforce the judgment of the WCJ. The judgment was made

executory on January 29, 2020, and a writ of fieri facias issued that same day.

However, on February 19, 2020, LaPoint filed an ex parte motion for a

temporary restraining order to enjoin enforcement of the WCJ judgment. The trial

court immediately issued the temporary restraining order. And one week later, the

trial court granted a preliminary injunction to the same effect.

Next, on February 27, 2020, LaPoint reconvened in the executory proceeding,

specifically seeking a declaratory judgment to enforce the April 2015 Settlement

Memorandum. According to LaPoint, the funds being held in escrow must be moved

back to Georgia in accordance with this agreement. The relevant portion of the

Settlement Memorandum states as follows:
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8. ESCROW: Plaintiff [LaPoint] to escrow in Plaintiff’s
counsel’s Nelson Tyrone’s trust account $863,695.00. Said funds to be
held in trust until such time as Plaintiff has delivered to Defendants
[Stephens TPS and C&I] written verification of the removal of the
Workers Compensation lien as exhibited in the correspondence
attached as exhibit B and Defendants have given written authorization
to Plaintiff’s counsel to release said funds.

Fifteen months later, on May 25, 2021, LaPoint filed a Motion for Summary

Judgment to Enforce Settlement Agreement and for Declaratory Relief. The hearing

on LaPoint’s motion was held on October 19, 2021. The trial court granted the

motion, and that ruling was reduced to written judgment signed on November 16,

2021. Relators now seek supervisory review of this judgment. 2

In the writ application before us, Relators assert that the trial court legally

erred in granting summary judgment. We agree.

In reviewing the trial court’s decision on a motion for summary judgment, we

apply the de novo standard of review using the same criteria applied by the trial court

to determine whether summary judgment is appropriate. Samaha v. Rau, 07-1726

(La. 2/26/08), 977 So.2d 880.

“[A] motion for summary judgment shall be granted if 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). Significantly, “the burden of proof rests with the mover.”

La.Code Civ.P. art. 966(D)(1).

Here, LaPoint, as the mover for summary judgment, had the burden of proving

two things: first, that there was no genuine issue of material fact. And second, that

he was entitled to judgment as a matter of law. In the end, LaPoint failed to prove

2
The judgment at issue is a partial summary judgment. La.Code Civ.P. art. 966(E). As
such, the judgment does not constitute a final judgment for purposes of an immediate appeal.
La.Code Civ.P. art. 1915(B)(1). And this means that the application for supervisory writ is
properly before this court.
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either of these elements. But the most glaring deficiency is LaPoint’s failure to prove

that he was entitled to judgment as a matter of law. As noted above, the OWC

judgment of November 26, 2019, specifically states that Relators “are entitled to

reimbursement from the amount currently held in the escrow account of Robert

Lapoint’s attorney, Aaron Broussard, in the amount of $570,941.00, representing

workers’ compensation lien reimbursement, plus legal interest from the date of

Judgment until paid.” The OWC judgment is the law between the parties, and it is

in direct conflict with the portion of the 2015 Settlement Memorandum that LaPoint

seeks to enforce by declaratory judgment.

Based on our de novo review, we conclude that LaPoint never satisfied his

burden of proof. The trial court therefore erred in granting summary judgment.

Relators also seek review of the preliminary injunction issued by the trial court

on February 27, 2020. However, Relators previously filed a writ application seeking

review of this preliminary injunction, and the application was properly denied as

untimely in docket number 20-363. For this same reason, the writ application now

before us is denied as it pertains to the preliminary injunction.

Our ruling does not mean that Relators are without a remedy. Relators can

file a motion in the trial court to dissolve the preliminary injunction. La.Code Civ.P.

art. 3607. And if either party objects to the trial court’s ruling on the motion to

dissolve, that party can seek review by this court by filing a timely appeal. La.Code

Civ.P. art. 3612.

DECREE

For the above reasons, we grant in part and make peremptory the application

for supervisory writ filed by Stephens TPS Inc. and Commerce & Industry Insurance

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Company. The November 16, 2021 judgment of the trial court is reversed, and the

matter is remanded to the trial court for further proceedings.

However, we deny in part the writ application to the extent that it seeks

supervisory review of the preliminary injunction of February 27, 2020.

The costs of these proceedings are assessed as follows: one-half to Stephens

TPS Inc. and Commerce & Industry Insurance Company; and one-half to Robert

LaPoint’s successors, Katelyn LaPoint, Ashlyn LaPoint, and Chelsea LaPoint, as

proper party Respondents.

WRIT GRANTED IN PART AND MADE PEREMPTORY;
WRIT DENIED IN PART.

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