Ray v. City of Bossier City

• Decision Date: 24 October 2003
• Docket Number: No. 37,708-CA.,37,708-CA.
• Citation: Ray v. City of Bossier City, 859 So.2d 264 (La. App. 2003)
• Parties: William A. RAY, et al., Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana

859 So.2d 264

William A. RAY, et al., Plaintiffs-Appellants, v. CITY OF BOSSIER CITY, et al., Defendants-Appellees.

No. 37,708-CA.

Court of Appeal of Louisiana, Second Circuit.

October 24, 2003.

Walker, Tooke & Lyons by Henry C. Walker, H. Clay Walker, Shreveport, for Appellant.

Cook, Yancey King & Galloway by Kenneth Mascagni, Shreveport, Robert Kennedy, Colfax, for Appellee.

Before BROWN, C.J., PEATROSS, DREW and MOORE, JJ., and TRAYLOR, J. Pro Tem.

BROWN, C.J.

The trial court granted defendants' motions for summary judgment and summarily dismissed plaintiffs' claims. For the following reasons, we affirm in part and reverse in part.

Factual and Procedural Background

On March 22, 2001, William A. Ray and Thomas M. Patten filed suit against the City of Bossier City, Danny R. Dison, James D. Hall, David Jones, and Michael Halphen (collectively referred herein as "the City"), claiming that they were constructively discharged from their jobs as Bossier City Police Officers¹ in retaliation for engaging in protected activity.

On October 23, 2002, all defendants filed motions for summary judgment, which were scheduled for a hearing on November 14, 2002; plaintiffs' attorney was not served until October 28, 2002.² Under La. C.C.P. art. 966 and applicable Louisiana State District Court Rules 9.9(d) and 9.10(c), plaintiffs were required to have served counter affidavits on opposing counsel no later than four days before the hearing (November 10 was a Sunday and the 11th was Veterans' Day, a legal holiday). Defendants had attached 41 exhibits (affidavits, depositions, statements, and documents) in support of their motions.

On November 12, plaintiffs filed a "Motion for Extension to Respond to Defendant's Summary Judgment Motions." This motion to extend was also set for argument on November 14. On that date, the trial court made the following ruling:

...I would allow you [plaintiffs] to file a written response, but would not allow you to file any counter-affidavits. In other words, I'd take the position that I would just decide the case on what has already been offered into evidence, or affidavits, or depositions that are contained in the record, ... I would merely allow you a brief period of time to—to write a response in the form of a memo, but not in the response—not—but not to allow you to offer any additional affidavits

* * *

[W]hen I say affidavits, any additional evidence.

(Emphasis added).

On November 22, 2002, plaintiffs filed an opposition brief and attached 15 exhibits, claiming that these exhibits, which primarily were excerpts from depositions, had all been produced in discovery. On December 10, 2002, the trial court granted defendants' motion to strike all of plaintiffs' exhibits. Plaintiffs claim never to have been notified of this ruling. On February 3, 2003, the trial court granted defendants' motions for summary judgment and dismissed all of plaintiffs' claims. Plaintiffs appealed.

The 15 exhibits stricken by the trial court are not in the record. Therefore, plaintiffs attached 13 exhibits to their original appellate brief. The City moved in this court to strike these exhibits and the portions of the brief which refer to them. Claiming to have never received notice of the interlocutory ruling by the trial court striking their exhibits, plaintiffs moved for a stay of the proceedings to seek supervisory review of the trial court's granting of the City's original motion to strike. This court denied both the City's motion to strike and plaintiffs' motion for stay.

Discussion

At the time in question, Danny R. Dison was the Chief of the Bossier City Police Department, James D. Hall was the City Attorney for Bossier City, David Jones was a member of the City Council for Bossier City, and Michael Halphen was the Public Information Officer for the Bossier City Police Department.³ Plaintiffs contend that Dison, Hall, Halphen, and Jones all conspired to terminate their employment in realiation for statements plaintiffs had made concerning Halphen and Jones driving while under the influence of alcohol. Plaintiffs contend that after Jones filed a harassment claim against them, an Internal Affairs ("IA") investigation ensued and thereafter, Chief Dison coerced Patten now resign and Ray to retire. Ray and Patten now claim that they were constructively discharged.⁴

The City claims that plaintiffs solicited other officers to make a stop or arrest of Halphen and Jones "on the basis of created probable cause or suspicion." The city correctly contends that such solicitation is an abuse of police power and is not a constitutionally protected activity.

Standard of Review for Summary Judgment

A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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 B. Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1).

The mover may point out to the court that there is an absence of factual support for one or more elements essential to the plaintiff's claim. The burden then shifts to the plaintiff who must demonstrate that he has evidence which if believed would support the essential elements of his claim. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La.06/30/00), 764 So.2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 764 So.2d 226; Belt v. Wheeler, 36,585 (La.App.2d Cir.12/18/02), 833 So.2d 1256; McEachern v. Mills, 36,156 (La.App.2d Cir.08/16/02), 826 So.2d 1176. Thus, the appellate court asks the same questions the trial court asked in determining whether summary judgment was appropriate. Magnon, supra.

Appellate Evidentiary Record

We must first address the trial court's rejection of exhibits submitted by plaintiffs in opposition to the summary judgment motions.

As previously noted, the trial court allowed an extension of time for plaintiffs to submit an opposition memorandum. The trial court, however, specifically denied plaintiffs' motion for an extension of time to submit "counter affidavits." The trial court stated that it would consider depositions already submitted by defendants.

All of the exhibits submitted with plaintiffs' memorandum to the trial court were gathered during discovery and included excerpts from depositions given by plaintiffs and defendants. The request for an extension was clearly considered a motion for a continuance by the trial court. At the November 14 hearing, the trial court stated to plaintiffs' counsel:

The Court: ... I think you filed a request for a continuance, didn't you?

Mr. Walker: Yes, your Honor.

The Court: And I converted the request for a continuance ... you asked for an ex parte continuance and I had hand-written in that I would convert that to a Rule to Show Cause....

Under the provisions of La. C.C.P. art. 1601, a continuance may be granted in any case if there is good ground therefor. The trial court has great discretion in granting or denying a motion for a continuance under this provision; that discretion will not be disturbed on appeal in the absence of a clear abuse of discretion. Demopulos v. Jackson, 33,560 (La.App.2d Cir.06/21/00), 765 So.2d 480. Whether a trial court should grant or deny a continuance depends on the particular facts of each case. Some factors to consider are diligence, good faith, and reasonable grounds. Id. Fairness to both parties and the need for orderly administration of justice are proper considerations in deciding whether to grant or deny a continuance. Gilcrease v. Bacarisse, 26,318 (La.App.2d Cir.12/07/94), 647 So.2d 1219, writ denied, 95-0421 (La.03/30/95), 651 So.2d 845.

Under the circumstances of this case, we find that the trial court abused its discretion in not granting a continuance to allow plaintiffs a reasonable time to file counter affidavits, depositions, and other documents.

In the instant case, although defendants have an important interest in having this case resolved, there is no indication that the continuance was sought for purposes of delaying resolution of this matter. The summary judgment motions were served on plaintiffs' attorney on October 28 with a hearing date to be 17 days later, on November 14. Under the procedural rules, plaintiffs had only 13 days to file counter affidavits and other evidence to show that genuine questions of material fact existed. On November 12, plaintiffs formally asked the trial court for an extension/continuance.

Although the lawsuit had been pending almost a year and a half, it was not until September 12, 2002, that the IA investigation report was ordered to be produced to plaintiffs. In brief, defendants recognize that this IA report is essential to the resolution of this lawsuit. Thereafter, in a letter dated October 1, 2002, plaintiffs' counsel requested from defendants' attorney a date to take the deposition of Gerald Huddleston, an officer prominently mentioned in the IA report. The only response to this request was the filing of the motions for summary judgment. We further note that defendants supported their summary judgment motions with the IA report which included transcriptions of all the statements taken during that investigation.

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