Zaunbrecher ex rel. Father v. Martin

• Citation: 242 So.3d 712
• Decision Date: 21 March 2018
• Docket Number: 17–932
• Parties: Zachary ZAUNBRECHER, Individually and on Behalf of His Deceased Father, Michael Blake Zaunbrecher v. Marissa MARTIN, Jeremy Ponthieux, and Nathan Ponthier
• Court: Court of Appeal of Louisiana (US)

242 So.3d 712

Zachary ZAUNBRECHER, Individually and on Behalf of His Deceased Father, Michael Blake Zaunbrecher
v.
Marissa MARTIN, Jeremy Ponthieux, and Nathan Ponthier

17–932

Court of Appeal of Louisiana, Third Circuit.

March 21, 2018

Charles A. Cerise, Jr., Edwin C. Laizer, Kellen J. Matthews, Louis C. LaCour, Jr., ADAMS AND REESE, LLP, 701 Poydras Street, Suite 4500, New Orleans, Louisiana 70139, (504) 581–3234, COUNSEL FOR DEFENDANT/APPLICANT: Marissa Martin

Amanda G. Clark, 4981 Bluebonnet Blvd., Baton Rouge, Louisiana 70809, (225) 928–5400, COUNSEL FOR DEFENDANTS/APPLICANTS: Jeremy Ponthieux, Nathan Ponthier

Robert M. Marionneaux, Jr., MARRIONNEAUX LAW FIRM, 660 St. Ferdinand Street, Baton Rouge, Louisiana 70802, (225) 330–6679, COUNSEL FOR PLAINTIFF/RESPONDENT: Zachary Zaunbrecher, individually and on behalf of his deceased father, Michael Blake Zaunbrecher

Duncan McKeithen, Michael T. Johnson, JOHNSON, SIEBENEICHER & INGRAM, 2757 Highway 28 East, Pineville, Louisiana 71360, (318) 484–3911, COUNSEL FOR RESPONDENTS: The Estate of Leo David Liberty Mutual Insurance Company

Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

CONERY, Judge.

Defendants/Relators, Marissa Martin, Nathan Ponthier, and Jeremy Ponthieux, seek supervisory writs from the judgment of the Twelfth Judicial District Court, Parish of Avoyelles, the Honorable William J. Bennett presiding, which denied their motion for summary judgment on the issue of statutory immunity provided by La.R.S. 9:2800.1, the Louisiana Anti–Dram Shop Statute. For the following reasons, Ms. Martin's, Mr. Ponthier's, and Mr. Ponthieux's writs are granted and made peremptory. All claims made against Ms. Martin, Mr. Ponthier, and Mr. Ponthieux by Respondents, Zachary Zaunbrecher, individually

242 So.3d 716

and on behalf of his deceased father, Michael Blake Zaunbrecher, the Estate of Leo David, and Liberty Mutual Insurance Company, are dismissed with prejudice at Respondents' costs.

Respondents' motion to strike the writ application of Marissa Martin is denied. Defendants' motion to strike Exhibits D and I of Plaintiff's opposition is granted.

STATEMENT OF THE CASE

This wrongful death suit arises out of a fatal automobile accident that occurred on July 11, 2013, involving Michael Blake Zaunbrecher, the father of Plaintiff, Zachary Zaunbrecher, and Leo J. David. Zachary Zaunbrecher (Mr. Zaunbrecher) initially filed suit, both individually and on behalf of his deceased father, Michael, against the Estate of Leo J. David, his insurer, Liberty Mutual Insurance Company, and Louisiana Farm Bureau, the uninsured motorist insurer of Michael Zaunbrecher. Plaintiff's petition alleged that Mr. David had a blood alcohol level of .21, and due to his intoxication, he negligently lost control of his vehicle, crossed the center line of La. Highway 1 in Avoyelles Parish, and ran head on into Michael Zaunbrecher's vehicle, causing his death. Mr. Zaunbrecher later amended his petition to add as defendants the Tunica–Biloxi Gaming Authority, d/b/a/ Paragon Casino Resort, (Paragon) and three of its employees in their individual capacities: Ms. Martin, a bartender, and Mr. Ponthier and Mr. Ponthieux, security guards (collectively, employee defendants). Plaintiff claims that Ms. Martin negligently overserved an already intoxicated Mr. David, and that the security guards failed to take steps to prevent Mr. David from leaving the casino in an obviously intoxicated state constituting a contributing cause of the accident and damages to Mr. Zaunbrecher. Paragon and the employee defendants answered the petition and filed exceptions of lack of subject matter jurisdiction, no cause of action and lis pendens.¹ Paragon Casino was owned and operated by the Tunica–Biloxi tribe, and the tribe claimed sovereign immunity prohibited claims in Avoyelles Parish District Court for the casino and its employee defendants.

On May 18, 2015 the trial court held a hearing on the defendants' exception of lack of subject matter jurisdiction based on tribal sovereign immunity, granted the defendants' exception and dismissed Mr. Zaunbrecher's claims against Paragon and the employee defendants. Mr. Zaunbrecher filed a timely appeal with this court.

On appeal, a panel of this court held the doctrine of sovereign immunity applied to the Tunica–Biloxi Gaming Authority d/b/a/ Paragon Casino Resort, thereby affirming the dismissal of Paragon. However, the panel found that the doctrine of sovereign immunity did not apply to its employees named in their individual capacities and reversed the trial court's ruling dismissing Ms. Martin, Mr. Ponthier, and Mr. Ponthieux. See Zaunbrecher v. Succession of David , 15-769 (La.App. 3 Cir. 12/9/15), 181 So.3d 885, writ denied , 16-49 (La. 2/26/16), 187 So.3d 1002. Certiorari was then denied by the Supreme Court in Tunica–Biloxi Gaming Authority v. Zaunbrecher , 85 U.S. 3521, 137 S.Ct. 2091, 197 L.Ed.2d 894 (2017). The suit against the employee defendants was remanded to state district court for further proceedings.

On August 23, 2017, the employee defendants filed a motion for summary judgment seeking (for the first time) dismissal of the entirety of the suit against them based on statutory immunity provided by La.R.S. 9:2800.1. On September 27, 2017, the employee defendants' motion for summary

242 So.3d 717

judgment was heard and ultimately denied by the trial court. On October 12, 2017, the employee defendants filed this application for supervisory writs seeking reversal of the trial court's ruling denying their motion for summary judgment and requesting expedited consideration due to the jury trial that was scheduled for October 31, 2017.

The dismissal of Paragon from the original case addressed only the doctrine of sovereign immunity of the Tunica–Biloxi nation, the owner of the Paragon Casino. This writ is the first time this court has addressed the statutory immunity granted by La.R.S. 9:2800.1 in relation to the three remaining defendants in their individual capacities.

While the original writ in CW–17–932 was pending before this court, on October 13, 2017, the trial court denied the employee defendants' motion to continue the jury trial. On October 17, 2017, the employee defendants notified this court of the trial court's decision to deny the continuance and on October 30, 2017, sought a stay of the jury trial, which was also denied by the trial court. The employee defendants then filed an emergency writ, in docket number CW–17–1015, seeking a stay of the jury trial pending consideration of their application for supervisory writs. A Stay Order was issued by this court on October 31, 2017, in docket number CW–17–1015. We also instructed the parties to submit supplemental briefs and allowed the parties until November 15, 2017, to request oral argument in the original docket number CW- 17–932. A timely oral argument request was made by the employee defendants, and oral argument was fixed for January 24, 2018, pursuant to La.Code Civ.P. art. 966(H) which states, "On review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument."

SUPERVISORY RELIEF

"A court of appeal has plenary power to exercise supervisory jurisdiction over district courts and may do so at any time according to the discretion of the court." Herlitz Constr. Co., Inc. v. Hotel Investors of New Iberia, Inc., et al. , 396 So.2d 878, 878 (La.1981) (per curium). "This general policy, however, should not be applied mechanically." Id. Thus, when the trial court's ruling:

is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits.

Id.

This case involves the determination of a question of law as to whether the employee defendants are entitled to qualified immunity from this lawsuit under a specific statute. The "immunity" operates not as a defense to liability, but as a complete bar to the suit itself. In determining the question of qualified immunity, the United States Supreme Court has ruled that the defendant has an entitlement to avoid the costs and expense of standing trial. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We issued a stay order on October 31, 2017 (with one dissent) in CW–1015 precisely for that reason.

Further, this court's supervisory jurisdiction may also be exercised to reverse

242 So.3d 718

a trial court's denial of a motion for summary judgment and to enter summary judgment in favor of the mover. Csaszar v. Nat'l Cas. Co., et al., 14-1273 (La.App. 3 Cir. 11/4/15), 177 So.3d 807, writ denied, 15-2221 (La. 1/25/16), 185 So.3d 752.

Motion To Strike Ms. Martin's Writ Application

In...