Danna v. Ritz-Carlton Hotel Co.

• Decision Date: 24 March 2021
• Docket Number: NO. 2020-CA-0116,C/W NO. 2020-CA-0318,C/W NO. 2020-C-0187,2020-CA-0116
• Parties: DEON DANNA v. THE RITZ-CARLTON HOTEL COMPANY, L.L.C., MARRIOTT INTERNATIONAL, INC., RUSSELL MILLER, AND ZACHARY CURRY CONSOLIDATED WITH: DEON DANNA v. THE RITZ-CARLTON HOTEL COMPANY, L.L.C., MARRIOTT INTERNATIONAL, INC., RUSSELL MILLER AND ZACHARY CURRY
• Court: Court of Appeal of Louisiana — District of US

DEON DANNA
v.
THE RITZ-CARLTON HOTEL COMPANY, L.L.C.,
MARRIOTT INTERNATIONAL, INC., RUSSELL MILLER, AND ZACHARY CURRY
CONSOLIDATED WITH:
DEON DANNA
v.
THE RITZ-CARLTON HOTEL COMPANY, L.L.C.,
MARRIOTT INTERNATIONAL, INC., RUSSELL MILLER AND ZACHARY CURRY

NO. 2020-CA-0116
C/W NO. 2020-C-0187
C/W NO. 2020-CA-0318

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

MARCH 24, 2021

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2011-01015, DIVISION "N-8"
Honorable Ethel Simms Julien, Judge

Judge Roland L. Belsome

(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Joy Cossich Lobrano)

LOBRANO, J., CONCURS IN THE RESULT

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K. Randall Evans
Alex J. Granier
EVANS & CLESI, PLC
336 Lafayette Street
Suite 200
New Orleans, LA 70130-3672

COUNSEL FOR PLAINTIFF/APPELLEE

George D. Fagan
Reagan R. Wilty
LEAKE & ANDERSSON, L.L.P.
1100 Poydras Street
Suite 1700
New Orleans, LA 70163-1701

COUNSEL FOR DEFENDANT/APPELLANT

WRIT GRANTED; RELIEF GRANTED; EXCEPTION DENIED; APPEAL AFFIRMED IN PART, REVERSED IN PART AND REMANDED

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RLB

DLD

This decades-long litigation stems from the termination of Plaintiff, Deon Danna, from his position as the Director of Engineering at the Ritz-Carlton Hotel, New Orleans (Ritz). The following submissions are currently before this Court: a writ application involving the sufficiency of the suspensive appeal, an exception of no cause of action, and consolidated appeals related to the jury trial and a denial of motions to tax costs. For the reasons set forth below, we grant the writ application and grant the relief requested; we deny the exception of no cause of action; we affirm the appeal, in part, on the jury trial and $1,650,000.00 award; and we reverse the appeal, in part, on the motions to tax costs; and remand to the trial court for further proceedings.

First, we will first address the writ application related to the sufficiency of the suspensive appeal. Then, we will turn to the exception and the consolidated appeals.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff worked as the Director of Engineering at the Ritz-Carlton, New Orleans hotel for ten years, and was also a member of the Guidance Team. During his employment discussions with management at the Ritz, Plaintiff was informed that employees of the Ritz have rights as part of an employee promise, which was different from other hotels. This promise was significant in Plaintiff's decision to accept employment with the Ritz because he had never worked for a hotel that offered similar rights. On June 1, 2000, his first day of work, Plaintiff and the Ritz signed the Employee Agreement, which would become effective upon completion of the sixty-day orientation period. The Employee Agreement guaranteed Plaintiff the right to the Fair Discipline Pact, which stated that Plaintiff could only be terminated for a major violation for cause, after a "fair and complete investigation."

In 2009, Russell Miller became the General Manager. Mr. Miller transferred to New Orleans from the Caribbean. Therefore, he had to set up a new household in New Orleans. In association with Mr. Miller's move, Tony Farris, a representative of the general partner that owns the Ritz, offered him the use of furniture that was stored in the annex. Shortly after, Mr. Miller instructed Plaintiff to assist him in moving furniture from the Ritz annex to his new home. Plaintiff advised Mr. Miller that he thought borrowing the furniture was a "bad idea." In response, Mr. Miller rolled his eyes and walked away from Plaintiff.

Subsequently, Plaintiff and some other employees made at least three trips to take furniture to Mr. Miller's house. Following his trips to Mr. Miller's house, Plaintiff contacted the Ritz's corporate Human Resources Director sometime in July, of 2009, to report Mr. Miller's use of the furniture. Mr. Miller was notified

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of Plaintiff's reporting him and he was not happy. A few days after Plaintiff informed Human Resources about the incident, Mr. Miller issued his first written discipline of Plaintiff. Numerous written disciplinary actions followed. Plaintiff's prior work record with the Ritz did not contain disciplinary actions similar to those issued by Mr. Miller. In fact, he received an award for his service in keeping hotel guests safe after Hurricane Katrina.

On June 16, 2009, Plaintiff was disciplined with a verbal warning for exceeding the engineering budget, failing to attend a presentation, failing to timely follow up on assigned tasks, and untimely attendance to meetings. Then, on July 23, 2009, Plaintiff received a written warning because he left his purchasing card (P-Card) in an engineering department safe while he was on vacation, and because he gave his safety deposit box key to another staff member for access. On September 17, 2009, Plaintiff 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 for an additional trash pick-up. In response to what Plaintiff perceived as harassing behavior and unwarranted discipline, Plaintiff wrote a letter, dated January 3, 2010, to corporate Human Resources for the Ritz and the Marriott. In the letter, Plaintiff described a hostile work environment and requested an investigation.

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, Plaintiff received a written suspension notification, based upon the carbon monoxide incident, asserting that he caused the release by negligently working on exhaust

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shafts, in connection with a project to remove lint from the laundry vents. The letter indicated that Plaintiff should meet with Mr. Miller on February 4, 2010, to discuss the investigation into the carbon monoxide leak. After that meeting, Plaintiff was terminated.

On January 3, 2011, Plaintiff filed a Petition for Damages against the Ritz, Marriott International, Inc., Mr. Miller and Zachary Curry, the hotel manager. Throughout the litigation, Plaintiff filed numerous amended petitions. He asserted claims for breach of contract, arising from the Employee Agreement signed by the parties in 2000, wrongful termination under the whistleblower statute,¹ and defamation. In between years of discovery, Plaintiff filed a motion for adverse presumption based on alleged spoliation of evidence and amended his petition to include a spoliation of evidence claim. Defendants answered and filed a

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reconventional demand seeking an award of attorney's fees and other relief pursuant to La. R.S. 23:967(D).²

Later, Defendants filed various motions for partial summary judgment seeking dismissal of all of Plaintiff's claims, including: breach of contract, whistleblower, defamation against Mr. Miller and Curry, and spoliation. After hearings on the various motions, the trial court denied Plaintiff's motion for adverse presumption, and granted all of the Defendants' motions for partial summary judgment on the breach of contract, whistleblower, defamation and spoliation claims, which resulted in the ultimate dismissal of Plaintiff's entire case.

On appeal, this Court affirmed the dismissal of the defamation claim. Danna v. Ritz-Carlton Hotel Co., LLC, 15-0651, pp. 1-2, (La. App. 4 Cir. 5/11/16), 213 So.3d 26, 30, writ denied, 16-1552 (La. 11/18/16), 210 So.3d 285, 286. However, it reversed the partial summary judgments on the breach of contract, whistleblower and spoliation claims finding that there were genuine issues of material fact that precluded summary judgment. Danna, 15-0651 at p. 17, 213 So.3d at 37 (Judge Belsome dissenting in part finding the whistleblower claim was properly dismissed). This Court further reversed the denial of the motion for adverse presumption and remanded for further proceedings finding that the issue rested on the resolution of the spoliation claims. Danna, 15-0651 at p. 2, 213 So.3d at 29.

On remand, the trial court through the course of several judgments dismissed Marriott International, Inc., Mr. Miller and Mr. Curry (Dismissed Defendants)

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from the lawsuit, leaving the Ritz as the only remaining Defendant to stand trial. As a result, the trial court rendered partial final judgment in favor of Dismissed Defendants, dismissing all of Plaintiff's claims on April 9, 2019. After a three-week trial, concluding on April 1, 2019, the jury rendered a verdict against the Ritz, and in favor of Plaintiff on the breach of contract claim awarding $1,650,000.00 in damages.³ The jury rejected Plaintiff's whistleblower and spoliation claims. On May 1, 2019, the trial court rendered a judgment confirming the jury verdict.

Thereafter, on October 15, 2019, the trial court denied the Ritz's motions for partial judgment notwithstanding the verdict and for partial new trial on the breach of contract claim. It further denied the Ritz's motion to reopen and/or supplement the record with a copy of Plaintiff's March 29, 2000, offer letter.

The Ritz filed a motion for suspensive appeal on November 7, 2019, attaching a $1,811,487.11 appeal bond, which was later increased by the trial court to $2,278,638.70. The Ritz filed for supervisory writs in case number 2020-C-0187 on the supplemental bond issue, which was consolidated into this appeal. Ultimately, the trial court granted the Ritz's suspensive appeal on November 15, 2019. Plaintiff answered the appeal. The trial court's May 1, 2019 judgment confirming the jury verdict and October 15, 2019, judgment denying the Ritz's motions are the subject of appeal number 2020-CA-116.

After trial, Dismissed Defendants and Plaintiff filed motions to tax costs. After a hearing, the trial court rendered a judgment on February 11, 2020, ordering Dismissed Defendants and Plaintiff to bear their own costs. The trial court further

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