Carr v. City of New Orleans

Decision Date27 July 1993
Docket NumberNo. 93-CA-0262,93-CA-0262
Citation622 So.2d 819
PartiesJacqueline CARR v. CITY OF NEW ORLEANS, et al.
CourtCourt of Appeal of Louisiana — District of US

Jacqueline Carr, in pro. per.

Robert E. Kerrigan, Jr., Joseph L. McReynolds, Deutsch, Kerrigan & Stiles, New Orleans, for defendants/appellees.

Before PLOTKIN, JONES and LANDRIEU, JJ.

PLOTKIN, Judge.

Plaintiff Jacqueline Carr (Carr) appeals from the dismissal of her suit on a motion for summary judgment. The issues for review are whether the trial court erred in granting summary judgment where a stay order was in place and whether genuine issues of material fact remain as to invasion of privacy and fraud.

On December 1, 1989, while a jury was deliberating over Carr's fate in an unrelated criminal trial, law enforcement officials received a tip from a confidential informant alleging that Carr had made reservations under the name "J. Carrson" on a Delta Air Lines (Delta) flight bound for New York the following morning. The officials contacted Delta employee Beverly Minor (Minor) to confirm the tip. After consulting Delta's disclosure guidelines, Minor called the law enforcement officials and gave them the flight information of "J. Carrson." The information in question was later faxed to the officials by an unknown Delta employee. Upon being informed of the circumstances surrounding the scheduled flight of "J. Carrson," the criminal court raised Carr's bail to $250,000, and ordered her to surrender her passport and remain in the jurisdiction of the court. The criminal court later determined that Carr was not a fugitive flight risk.

On December 4, 1990, Carr filed a petition for damages in the Federal District Court for the Eastern District of Louisiana, asserting claims against, among others, Delta, Minor, and an unnamed Delta employee (hereinafter referred to collectively as "defendants"). On March 27, 1991, Carr filed a similar petition in state court, alleging that defendants violated her privacy interests, committed fraud or misrepresentation, and violated company policy by releasing her plane reservation to law enforcement officials.

On May 16, 1991, defendants filed a stay order, pursuant to La.C.Civ.P. art. 532, pending resolution of Carr's federal court action. Carr filed a response in which she consented to a stay of the state court proceedings. The proceedings were formally stayed June 25, 1991.

On November 6, 1991, the federal court granted summary judgment in favor of defendants. On August 10, 1992, Carr filed a motion to lift the stay order in the state proceeding. Defendants were ordered to show cause October 16, 1992 why the stay should not be lifted.

On August 24, 1992, defendants filed a motion joining Carr's motion to lift the stay order, together with a motion for summary judgment. Hearing on defendants' motions was set for October 16, 1992, the same date that Carr's motion to lift the stay order was scheduled for hearing. On October 6, 1992, Carr filed an exception of unauthorized use of summary proceedings, arguing that defendants' motion for summary judgment violated the court's stay order. The next day, Carr filed a motion to continue the summary judgment hearing until the stay order was vacated. This motion was granted, and hearing on defendants' motion for summary judgment was rescheduled for November 13, 1992. Then, on November 12, 1992, Carr filed a timely notice of appeal in the federal court. 1

On November 13, 1992, a hearing on defendants' motion for summary judgment was held and both parties concede that the stay order was lifted by minute entry at this time. Summary judgment was granted November 18, 1992, dismissing Carr's suit with prejudice. Carr subsequently brought this appeal. We affirm.

Carr argues that defendants' motion for summary judgment violated the stay order because it was filed before that order had been formally lifted. We find no merit to this argument. As outlined above, Carr filed a motion to lift the stay order on August 10, 1992, and defendants were subsequently ordered to show cause October 16, 1992, why the stay should not be lifted. Defendants then filed a motion joining Carr's motion to lift the stay order, together with a motion for summary judgment. Hearing on defendant's motions was set for October 16, 1992.

However, on October 6, 1992, Carr filed an exception of unauthorized use of summary proceedings, arguing that defendants' motion for summary judgment violated the court's stay order. The next day, Carr filed a motion to continue the summary judgment hearing until the stay order was vacated. This motion was granted, and hearing on defendants' motion for summary judgment was rescheduled for November 13, 1992. Then, on November 12, 1992, one day before the hearing on defendants' motion for summary judgment, Carr filed a response in which she requested ten days written notice of the lifting of the stay order prior to proceeding with defendants' motion for summary judgment. Despite this last minute request, the hearing on summary judgment proceeded as scheduled, the stay order was lifted, and Carr's action was dismissed. At no time did Carr withdraw her motion to lift the stay order, and nothing in the record indicates that she was deprived of her opportunity to oppose defendants' motion for summary judgment. Furthermore, because the motion to lift the stay order was granted in open court, and not taken under advisement, Carr was not entitled to the ten day notice required in La.C.Civ.P. art. 1914. Doolan v. Doolan, 349 So.2d 980, 982 (La.App. 3rd Cir.1977).

Carr also argues that summary judgment was inappropriate because genuine issues of material fact remain as to whether Delta invaded her privacy or committed fraud. 2 We disagree.

Carr's opposition to defendants' motion for summary judgment provided:

Jacqueline Carr ... opposes the Motion for Summary Judgment, on the basis that the Motion for Summary Judgment was served September 16, 1992, prior to the lifting of the stay and/or lis pendens; plaintiff has not received written notice of the order lifting stay, allowing the parties to proceed, as required by [La.C.Civ.P.] Articles 1913 and 1914 * * * and the summary judgment is currently on appeal in * * * United States District Court for the Eastern District of Louisiana * * *

Based on this pleading, it appears that Carr's opposition to defendants' motion for summary judgment consisted solely of the procedural argument which we rejected above. Nothing in Carr's opposition indicates that the trial court was asked to determine whether genuine issues of material fact remained as whether defendants invaded her right of privacy or committed fraud. We will, however, examine these issues briefly.

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