Danna v. Ritz-Carlton Hotel Co.

• Decision Date: 11 May 2016
• Docket Number: No. 2015–CA–0651.,2015–CA–0651.
• Citation: 213 So.3d 26
• Parties: Deon DANNA v. The RITZ–CARLTON HOTEL CO., LLC, et al.
• Court: Court of Appeal of Louisiana — District of US

213 So.3d 26

Deon DANNA

v.The RITZ–CARLTON HOTEL CO., LLC, et al.

No. 2015–CA–0651.

Court of Appeal of Louisiana, Fourth Circuit.

May 11, 2016.

Rehearing Denied July 13, 2016.

K. Randall Evans, Jaimie A. Tuchman, Evans & Clesi, PLC, New Orleans, LA, for Plaintiff/Appellant, Deon Danna.

George D. Fagan, Margaret F. Swetman, Tiffany T. Smith, Leake & Andersson, L.L.P., New Orleans, LA, for Defendants/Appellees, The Ritz–Carlton Hotel Company L.L.C., Marriott International, Inc., Russell Miller, and Zachary Curry.

(Court composed of Judge TERRI F. LOVE, Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO, Judge SANDRA C. JENKINS ).

TERRI F. LOVE, Judge.

This appeal arises from the termination of plaintiff from his position as the Director of Engineering at the Ritz–Carlton Hotel. Plaintiff filed a petition for damages contending that his termination constituted a breach of contract, that he was defamed, that he was fired for informing corporate that his supervisor took furniture without permission, and that the defendants intentionally destroyed evidence.

The trial court granted all of the defendants' motions for summary judgment regarding plaintiff's claims relative to breach of contract, defamation, whistleblowing, and spoliation, which resulted in the dismissal of the plaintiff's case. The trial court also denied the plaintiff's request for an adverse presumption based on spoliation.

We find that the trial court erroneously weighed the evidence and made credibility determinations when granting the defendants motions for summary judgment relative to breach of contract, whistleblowing, and spoliation. Therefore, we reverse and remand for proceedings consistent with this opinion. We find that the trial court correctly granted defendants' motion for summary judgment regarding the plaintiff's defamation claims because the record lacks any evidence that the statements were published to someone outside of the hotel chain of command in the normal course and scope of employment. Thus, we affirm. Lastly, because the plaintiff's request for an adverse presumption rests upon the resolution of the spoliation claims by the factfinder, we reverse and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Deon Danna worked as the Director of Engineering at the Ritz–Carlton New Orleans ("Ritz–Carlton") for ten years, and was also a member of the Guidance Team. Russell Miller became his supervisor, as the General Manager in 2009. Mr. Miller transferred to New Orleans from the Caribbean. Therefore, he had to set up a new household in New Orleans. In May/June 2009, Mr. Miller instructed Mr. Danna to assist him in selecting furniture from the Ritz–Carlton annex¹ and moving it to his new home. Mr. Danna advised Mr. Miller that he thought borrowing Ritz–Carlton furniture was a "bad idea." Mr. Miller disagreed with Mr. Danna. Subsequently, Mr. Danna and some other Ritz–Carlton employees made at least three trips to take furniture and other items to Mr. Miller's house. Following the first trip to Mr. Miller's house, Mr. Danna allegedly informed the Ritz–Carlton Human Resources Director. Mr. Miller testified in his deposition that he was angry at and offended by Mr. Danna for reporting the furniture move. A few days after Mr. Danna allegedly informed Human Resources about the incident, Mr. Miller issued his first written discipline of Mr. Danna. Several successive written disciplinary actions followed. Mr. Danna's prior work record with the Ritz–Carlton did not contain disciplinary actions similar to those issued by Mr. Miller.

On June 17, 2009, Mr. Danna was disciplined with a verbal warning for spending in excess of the engineering budget, forgetting about a presentation, following up on "assigned tasks in a timely [sic] manner," and untimely attendance at meetings. On July 23, 2009, Mr. Danna received a written warning because he left his P–Card in an engineering department safe while he was on vacation, and because Mr. Danna allegedly gave his safety deposit box key to another staff member for access. On September 17, 2009, Mr. Danna received a revised written warning citing his usage of an outside vendor, again raising the P–Card and safety deposit box issues, late payment and double payment of the electrical bill, late submittal of monthly critiques, and because someone called the trash removal company to request an additional pick-up.

Then, on January 18, 2010, there was a build-up of carbon monoxide on some of the guestroom floors, which resulted in the evacuation of hotel guests and the treatment of some guests at nearby hospitals. On February 1, 2010, Mr. Danna received a written suspension notification, based upon the carbon monoxide incident, asserting that he caused the release by negligently working on exhaust shafts. The letter indicated that Mr. Danna should meet with Mr. Miller on February 4, 2010, to discuss the investigation into the carbon monoxide leak. It is undisputed that on February 4, 2010, Mr. Miller fired Mr. Danna.

On May 7, 2010, counsel for Mr. Danna wrote a letter to Ritz–Carlton indicating that he was retained by Mr. Danna to represent him against Ritz–Carlton for damages and his reinstatement. Subsequently, on January 3, 2011, Mr. Danna filed a Petition for Damages against the Ritz–Carlton Hotel Company, LLC; Marriott International, Inc.; Mr. Miller; and Zachary Curry, the hotel manager (collectively "Defendants"). Mr. Danna asserted that Defendants breached his contract of employment, wrongfully terminated him because he was a whistleblower, and that he suffered defamation at the hands of Defendants. Defendants filed a reconventional demand seeking attorneys' fees and costs.

After conducting years of contentious discovery, Mr. Danna filed a Motion for Adverse Presumption based on the alleged spoliation of evidence. Mr. Danna then filed an Amended Petition contending the Defendants committed spoliation. The Defendants then filed four Motions for Partial Summary Judgment seeking the dismissal of Mr. Danna's defamation claims against Mr. Miller and Mr. Curry, the dismissal of the breach of contract claims, as well as the dismissal of the whistleblower claims. Mr. Danna then filed a Motion for Summary Judgment on liability. Defendants also filed an exception of prescription as to Mr. Danna's whistleblower claims, which the trial court denied.

Following a hearing on all of the motions for summary judgment and Mr. Danna's Motion for Adverse Presumption, the trial court: 1) denied Mr. Danna's Motion for Summary Judgment on liability, 2) denied Mr. Danna's Motion for Adverse Presumption based on spoliation, and granted all three of Defendants' Motions for Summary Judgment regarding breach of contract, whistleblower, and defamation claims. Mr. Danna requested that the trial court designate the judgment as final and appealable. Defendants then filed a Motion for Partial Summary Judgment regarding Mr. Danna's spoliation claims. Mr. Danna filed a Motion for New Trial based on newly discovered evidence. The trial court: 1) granted Defendants' Motion for Summary Judgment on spoliation, 2) denied Mr. Danna's Motion for New Trial, 3) granted Mr. Danna's request to designate the previous judgment as final, and 4) denied Defendants' Motion for Attorneys' Fees. Mr. Danna's appeal followed.

Mr. Danna contends that the trial court erred by: 1) denying his Motion for Summary Judgment, 2) granting Defendants' Motion for Summary Judgment on breach of contract claims, 3) granting Defendants' Motion for Summary Judgment on defamation claims, 4) granting Defendants' Motion for Summary Judgment on whistleblower claims, 5) granting Defendants' Motion for Summary Judgment on spoliation claims, and 6) denying his Motion for Adverse Presumption based on spoliation. Defendants assert the prescription of some of Mr. Danna's claims, as well as exceptions of no cause of action in their appellee brief. However, Defendants did not answer the appeal or file a cross appeal. Therefore, these issues will not be addressed. See Eubanks v. Hoffman, 96–0629, p. 2 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 598.

STANDARD OF REVIEW

"The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action," and "[t]he procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966(A)(2). "After an opportunity for adequate discovery, 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 burden of proof rests with the mover." La. C.C.P. art. 966(D)(1). However, "if the mover will not bear the burden of proof at trial on the issue", then "the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. C.C.P. art. 966(D)(1). The burden then shifts to the non-mover "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La. C.C.P. art. 966(D)(1).

"Summary judgments are reviewed on appeal de novo. " Walker v. Kroop, 96–0618, p. 1 (La.App. 4 Cir. 7/24/96), 678 So.2d 580, 582. Appellate courts ask the same questions as the trial court: 1) "whether there is any genuine issue of material fact" and 2) "whether the mover-appellant is entitled to judgment as a matter of law." Walker, 96–0618, p. 2, 678 So.2d at 582.

"Where the trial court is presented with a choice of reasonable inferences to be drawn from subsidiary facts contained in affidavits, exhibits, and depositions, reasonable inferences must be...