Balthazar v. Hensley R. Lee Contracting, Inc.
| Decision Date | 15 March 2017 |
| Docket Number | NO. 2016–C–0922, NO. 2016–C–0924, NO. 2016–C–0923, NO. 2016–C–0928, NO. 2016–C–0927, NO. 2016–C–0921, NO. 2016–C–0925,NO. 2016–C–0920, NO. 2016–C–0926,2016–C–0920 |
| Citation | 214 So.3d 1032 |
| Parties | Brian BALTHAZAR, et al v. HENSLEY R. LEE CONTRACTING, INC., et al Brian Balthazar, et aL v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc. et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc. et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al Brian Balthazar, et al v. Hensley R. Lee Contracting, Inc., et al |
| Court | Court of Appeal of Louisiana — District of US |
Jennifer N. Willis, Jennifer S. Martinez, WILLIS & BUCKLEY, APC, 3723 Canal Street, New Orleans, Louisiana 70119 and Gary J. Gambel, MURPHY, ROGERS, SLOSS, GAMBEL & TOMPKINS, One Shell Square, 701 Poydras Street, Suite 400, New Orleans, Louisiana 70139 and Antonio "Tony" Clayton Clayton, Fruge & Ward, 3741 Highway 1 South, Port Allen, Louisiana 70767, COUNSEL FOR PLAINTIFFS/RELATORS
Elizabeth Smyth Rambin, Raymond J. Pajares, Milling Benson Woodard LLP, 68031 Capital Trace Row, Mandeville, Louisiana 70471 and Matthew D. Miller, Copeland, Cook, Taylor & Bush, 110 Sheffield Loop, Hattiesburg, Mississippi 39404, COUNSEL FOR DEFENDANTS/RESPONDENTS
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )
Plaintiffs/Relators seek review of the trial court's July 19, 2016 judgment granting Hensley R. Lee Contracting, Inc. and Tom Hayden ("Mr. Hayden") (collectively "HRL") partial summary judgment and dismissing with prejudice "all claims of racial discrimination, hostile work environment, intentional infliction of emotional distress, and all other claims based on racial animus, including those that fall under the Louisiana Unfair Trade Practices Act." We find the motions for partial summary judgment do not address Plaintiffs' claims as pled in their petition. Based on the circumstantial evidence presented and the need for additional discovery, we also find that genuine issues of material fact exist. Accordingly, we grant the writ, reverse the trial court judgment granting partial summary judgment, and remand the matter for proceedings in line with this Court's writ disposition.
Plaintiffs allege the underlying facts as follows: In 2011, the Army Corps of Engineers set out bids for a levee project in Algiers. After the bidding process, the project was awarded to defendant Southern Services & Equipment ("SSE"), who subcontracted the job to defendant Hensley R. Lee Contracting, Inc.1 HRL then subcontracted part of the job to Plaintiffs' employer, Titan Maintenance and Construction ("Titan").
According to Plaintiffs, when HRL subcontracted with Titan, Defendants lacked Titan's levee building experience. Titan worked for approximately one month on the project before it was terminated. Plaintiffs allege that Defendants used the time Titan was employed to procure Titan's trade practices and plans as well as to learn the levee building skills needed to complete the project. Additionally, Plaintiffs claim that SSE and HRL racially harassed Plaintiffs, created a hostile work environment, prevented Plaintiffs from performing their work, and questioned their abilities and work performance. Furthermore, Plaintiffs contend that SSE and HRL's actions were intended to drive Titan off the project. Without Titan, the proceeds from the levee project would be split between SSE and HRL, thereby increasing their individual profit shares. In fact, after the project was completed, the Army Corps of Engineers issued all payments on the contract owed to SSE, who in turn paid HRL. Titan, on the other hand, never received payment for its work.
Titan and Plaintiffs filed separate suits against SSE, HRL, and their owners which were later consolidated. The petitions alleged SSE and HRL acted "in collusion to drive [Titan]" off the levee project in violation of the Louisiana Unfair Trade Practices Act ("LUTPA") and included claims of intentional infliction of emotional distress. Thereafter, HRL and Mr. Hayden filed separate motions for partial summary judgment2 for each plaintiff. Both parties argued that no genuine issue of material fact exists as to Plaintiffs' claims of racial animus, including discrimination and hostile work environment. Opposing partial summary judgment, Plaintiffs averred that genuine issues of material fact remain given the pattern of discrimination and racially derogatory comments and slurs directed at Titan's African–American employees. Plaintiffs also alleged that genuine issues of material fact remain regarding who among the principal parties worked for HRL and whether their conduct is attributable to HRL. The trial court found that Plaintiffs failed to demonstrate evidence of conspiracy or "gamesmanship" and granted partial summary judgment in favor of HRL and Mr. Hayden. Plaintiffs timely seek supervisory review of the trial court's ruling.
On appellate review, courts consider de novo the granting of summary judgment. Brunet v. Fullmer , 00–0644, p. 3 (La.App. 4 Cir. 1/10/01), 777 So.2d 1240, 1241. Appellate courts also use the same criteria that governs the trial court's consideration of "whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law." Weintraub v. State Farm Fire & Cas. Co. , 08–0351, p. 2 (La.App. 4 Cir. 10/29/08), 996 So.2d 1195, 1196–97, quoting Supreme Servs. and Specialty Co., Inc. v. Sonny Greer, Inc. , 06–1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638.
"[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. C.C.P. art. 966(A)(3). The party filing the summary judgment motion bears the burden of proof. La. C.C.P. art. 966(D)(1). "[I]f the mover will not bear the burden of proof at trial on the issue," the mover need only "point out to the court the absence of factual support for one of more elements essential to the adverse party's claim, action, or defense." Id. "Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Smith v. Our Lady of the Lake Hosp., Inc. , 93–2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751, quoting South Louisiana Bank v. Williams , 591 So.2d 375, 377 (La. App. 3rd Cir. 1991).
We begin by addressing a procedural aspect of HRL's partial summary judgment motion. The basis for HRL's request for partial summary judgment fails to address the actual claim asserted in Plaintiffs' petition. Plaintiffs' petition asserts a claim for unfair trade practices and deceptive acts in knowing violation of LUTPA. The acts and practices that Plaintiffs argue were unfair and deceptive include allegations of racial discrimination and derogatory comments, creating a hostile work environment, and intentionally inflicting emotional distress. Plaintiffs aver that Defendants' actions were unfair and deceptive within the meaning of LUTPA because they were carried out as part of a conspiracy to oust Titan from the levee project for Defendants' economic benefit.
Inexplicably, HRL fails to address Plaintiffs' LUTPA claims and instead argues for partial summary judgment based on nonexistent employment law claims that Plaintiffs never raised.3 The record makes clear that Plaintiffs have asserted an action for unfair and deceptive trade practices. We find no evidence in the pleadings or procedural history that suggests otherwise. Therefore, we find as a procedural matter HRL's argument is unsupported by the record.
We highlight this point to draw a distinction between Plaintiffs' actual theory of recovery and HRL's mischaracterization of Plaintiffs' theory of recovery. HRL moved for partial summary judgment on grounds that Plaintiffs do not have claims for racial discrimination and hostile work environment because HRL was not their employer. Thus, the premise of HRL's argument is Louisiana employment law. As Plaintiffs contend, HRL relies on the false assumption that Plaintiffs asserted an employment discrimination claim in a veiled attempt to achieve the dismissal of what is in fact evidence (not legal claims) of racial discrimination and hostile work environment.
Even if this Court were to assume that Plaintiffs raised an employment law claim, HRL's argument is undermined by Plaintiffs' admissions and HRL's own actions. Plaintiffs willingly acknowledge that HRL was not their employer. Thus, had they alleged an employment law claim, Plaintiffs would have no reason, based on their own admission, to oppose partial summary judgment. Likewise, HRL could have filed exceptions for no cause of action and/or right of action under state employment law instead of a motion for partial summary judgment. Yet, the only exceptions HRL filed were exceptions of no cause of action and/or right of action under LUTPA .4
HRL's motion marks the first time issues of employment law have been raised or argued. While summary judgment may be rendered only on those issues set forth in the motion under consideration pursuant to La. C.C.P. art. 966(F), the motion itself does not dictate the nature of a petitioner's claim or the theory of recovery upon which a petitioner seeks redress. Simply because HRL argued in their motion for the dismissal of issues of racial discrimination and hostile work environment under Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq. ...
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