The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
17-770
SHANNON JAMES SUAREZ
VERSUS
JOHN DEROSIER, INDIVIDUALLY AND IN HIS CAPACITY AS THE
CALCASIEU PARISH DISTRICT ATTORNEY, ET AL.
**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2015-3872, DIVISION “G”
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Elizabeth A. Pickett, Judges.
REVERSED AND REMANDED.
Glen R. Petersen
Hymel Davis & Petersen, L.L.C.
10602 Coursey Boulevard
Baton Rouge, LA 70816
Telephone: (225) 298-8118
COUNSEL FOR:
Defendant/Appellee - John DeRosier, Individually and in his Capacity
as the Calcasieu Parish District Attorney
Christian D. Chesson
Joseph Lee Manuel
One Lakeshore Drive – Suite 1800
Lake Charles, LA 70629
Telephone: (337) 436-5297
COUNSEL FOR:
Plaintiff/Appellant - Shannon James Suarez
THIBODEAUX, Chief Judge.
Shannon James Suarez brought suit against District Attorney John
DeRosier and Investigator Bill Pousson, alleging malicious prosecution and
misconduct in investigative and administrative duties in the District Attorney’s
Office. Defendants were granted summary judgment on the grounds of absolute
immunity. Mr. Suarez now appeals, asserting that the trial court erred in granting
the motion because he was not allowed to adequate discovery. We agree. We,
therefore, reverse the judgment of the trial court and remand to allow Mr. Suarez
the opportunity for adequate discovery. We express no opinion regarding the
merits of Mr. Suarez’s claims.
I.
ISSUES
This court must consider whether the trial court erred in granting the
motion for summary judgment for a malicious prosecution claim when the plaintiff
was denied adequate discovery for seven months. This court must also consider
whether the trial court erred in not deeming the plaintiff’s request for admission of
fact admitted when defendants failed to answer within the specified time period
under La.Code Civ.P. art. 1467(A).
II.
FACTS AND PROCEDURAL HISTORY
On June 30, 2009, Mr. Suarez allegedly threw a box of Twinkies at
Jerry W. “J.W.” Peloquin II. Mr. Peloquin alleged that Mr. Suarez had been
stalking him for several months and had threatened and battered him in August and
September 2009. Lori Guidry Smith also alleged that Mr. Suarez stalked her in
August 2009. Mr. Suarez was arrested by local authorities, and, on March 29,
2011, the Calcasieu Parish District Attorney’s Office filed formal charges of
stalking, a violation of La.R.S. 14:40.2(A). The District Attorney amended the Bill
of Information on May 23, 2013, adding simple battery, a violation of La.R.S.
14:35, for the alleged battery on June 30, 2009.
Mr. Pousson went to Mr. Suarez’s place of employment to talk to him
about the charges. Mr. Suarez alleges Mr. Pousson offered to make his problems
“go away” and encouraged him to plead guilty and spoke to him even though he
knew Mr. Suarez was represented by counsel.
Mr. Suarez filed a motion to quash, asserting the battery charge had
prescribed. Mr. Suarez appealed the trial court’s adverse decision and discovered
that a subsequent version of the Bill of Information had been stamped “Sex
Offender.” This court granted the writ and dismissed the charges. The Louisiana
Supreme Court denied the District Attorney’s writ application.
Mr. Suarez filed suit against Mr. DeRosier on September 24, 2015,
alleging malicious prosecution and misconduct in the investigative and
administrative duties of the District Attorney’s Office. Mr. Suarez alleges that the
“Sex Offender” stamp on the Bill of Information was defamatory, and subjected
him to ridicule, humiliation, and condemnation because it could be accessed
through public record. Mr. Suarez also claimed that the labeling of “Sex Offender”
caused the intentional infliction of emotional distress. Plaintiff’s counsel sent
Interrogatories, Request for Production of Documents and Request for Admissions
on October 6, 2015, which were delivered by certified mail with signature
confirmation on October 9, 2015. Defense counsel requested an informal
2
extension to file responsive pleadings, and both parties agreed to the extension
until November 13, 2015.
On November 19, 2015, Defendants filed a motion for summary
judgment with a supporting memorandum, asserting absolute immunity. No
responsive pleadings were filed. Identical affidavits of Mr. DeRosier and District
Attorney’s Office employees were entered into the record. Defendants never
answered Plaintiff’s petition nor did Defendants answer requests for discovery. A
motion to continue the summary judgment hearing was filed on February 18, 2016,
and the hearing was continued until April 20, 2016. The motion was granted on
the understanding that Defense counsel would comply with discovery requests.
Mr. Suarez filed an Amended and Supplemental Petition on April 12,
2016, adding Mr. Pousson as a Defendant. At the April 20, 2016 hearing, Defense
counsel maintained he had not received discovery requests. However, the
Interrogatories and Request for Production of Documents and Request for
Admissions were sent by certified mail and signed for on October 9, 2015. The
hearing was continued until June 1, 2016 to allow for Defense counsel to review
the Amended and Supplemental Petition and to respond to propounded
Interrogatories and Request for Production of Documents and Request for
Admissions. Due to a scheduling conflict, the hearing ultimately was held on June
3, 2016.
On April 25, 2016, Defense counsel’s paralegal requested another
informal extension until May 1, 2016 to answer the First Amended and
Supplemental Petition for Damages. In exchange for the extension, Plaintiff’s
counsel requested dates be set aside in May to take depositions prior to the hearing
scheduled for June. Defense counsel’s paralegal responded via email asking who
3
Plaintiff’s counsel wished to depose. Plaintiff’s counsel responded that he wished
to depose Mr. Pousson and Mr. DeRosier, and possibly others based on documents
from the anticipated discovery. After Plaintiff’s counsel told the paralegal to
contact his office manager to set the depositions, the paralegal did not further
respond to Plaintiff’s counsel’s emails. The office manager called the paralegal
and the paralegal only provided June 15, 2016 as a possible deposition date,
notably not in May as Plaintiff’s counsel had requested to take depositions before
the summary judgment hearing. Later, the paralegal called the office manager to
reschedule the depositions to June 20, 2016. However, Mr. Pousson became
unavailable on that date. The parties could not get the depositions rescheduled
because Defense counsel refused the dates unless Mr. DeRosier and Mr. Pousson
were deposed on the same date because he did not want to drive to Lake Charles
twice.
Defendants filed a memorandum to support the motion for summary
judgment on May 2, 2016. During this time, Plaintiff tried to propound discovery
and Defendant continued not answering any discovery. As of May 27, 2016, no
depositions were scheduled, and no discovery was received. Plaintiff’s counsel
filed a motion to continue because Memorial Day Weekend was on May 30, 2016,
and any discovery he might receive would not allow him time to adequately
prepare for the summary judgment hearing.
Mr. Suarez filed a Motion to Compel Answers to Interrogatories, and
Request for Production of Documents and Deem Requests for Admissions
Admitted on May 27, 2016. The Defendant did not answer discovery requests
until after the motion to compel was filed by Mr. Suarez. Plaintiff’s counsel’s
attempts to depose Defendants and to propound discovery were ignored. During
4
the hearing, Defense counsel said he filed a response to the Request for
Admissions but not the other two discovery requests because it would bear on the
ultimate decision of the case. Defense counsel further suggested that Mr. Suarez
could not move forward because the case is a malicious prosecution case and the
actions were part of the judicial process and, therefore, subject to absolute
immunity.
Plaintiff’s counsel proffered four exhibits at the summary judgment
hearing: a letter requesting an extension from Defense counsel; Interrogatory and
Request for Production of Documents to Defendant; emails from Plaintiff’s
counsel to Defense counsel’s paralegal; and Defendant’s Response to Plaintiff’s
Request for Admissions. The trial court granted the motion for summary
judgment. The court noted that a continuance for discovery would be denied and
the motion to compel would be rendered moot as well. Mr. Suarez now appeals.
III.
STANDARDS OF REVIEW
“Appellate courts review summary judgments de novo, using the same
criteria applied by the trial courts to determine whether summary judgment is
appropriate.” O’Brien v. Town of Glenmora, 08-309, p. 3 (La.App. 3 Cir. 11/5/08),
997 So.2d 753, 756. A court must grant a summary judgment “if the pleadings,
depositions, answers to interrogatories, and admissions, together with the
affidavits, if any . . . show that there is no genuine issue as to material fact.”
La.Code Civ.P. art. 966(B). Summary judgment “is designed to secure the just,
speedy, and inexpensive determination of every action . . . .” La.Code Civ.P. art.
966(A)(2). For a continuance, the abuse of discretion standard is applied “to
5
determine if the trial court allowed adequate time for discovery.” Advance
Products & Systems, Inc. v. Simon, 06-609, p. 5 (La.App. 3 Cir. 12/6/06), 944
So.2d 788, 792.
IV.
LAW AND DISCUSSION
First, this court must address whether the trial court properly granted
the motion for summary judgment on the malicious prosecution claim. Mr.
DeRosier argues that the grant of summary judgment was proper because a
prosecutor is entitled to absolute immunity. Mr. Suarez asserts that in order to
determine whether the torts complained of in the petition fall into absolute
immunity or qualified immunity, adequate discovery is necessary. Mr. Suarez
contends that summary judgment was improper when he was denied adequate
discovery because Defendants failed to answer discovery for seven months, and
the case hinges upon establishing the type of action to determine the applicable
immunity.
Mr. Suarez argues that he has a cause of action for malicious
prosecution, defamation, intentional interference, and intentional infliction of
emotional distress. Mr. Suarez contends that Mr. DeRosier’s assertion that the
District Attorney has absolute immunity is incorrect because the District Attorney
has qualified immunity for administrative and investigative functions. Mr. Suarez
argues that malice and bad faith are questions of fact for which they do not know
the answer because they did not complete discovery. Plaintiff’s counsel alleges
Defense counsel intentionally tried to avoid discovery and only answered the
Request for Admissions of Fact via email twenty minutes after Plaintiff’s counsel
6
filed a motion to compel. Mr. Suarez maintains that adequate discovery is
necessary to show that there is a genuine issue of material fact. We agree.
In order to establish a prima facie case for malicious prosecution, a
plaintiff must prove six elements:
(1) The commencement or continuance of an original
criminal or civil judicial proceeding;
(2) its legal causation by the present defendant against
plaintiff who was defendant in the original
proceeding;
(3) its bona fide termination in favor of the present
plaintiff;
(4) the absence of probable cause for such proceeding;
(5) the presence of malice therein; and
(6) damage conforming to legal standards resulting to
plaintiff.
Terro v. Chamblee, 95-70, p. 3 (La.App. 3 Cir. 7/19/95), 663 So.2d 75, 77 (citing
Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975)). When prosecutors engage in
administrative, investigative, or ministerial roles, the prosecutor has qualified
immunity rather than absolute immunity. See Fields v. Wharrie, 740 F.3d 1107,
1111 (7th Cir. 2014); see also Hayes v. Parish of Orleans, 98-2388, pp. 3-5
(La.App. 4 Cir. 6/16/99), 737 So.2d 959.
Mr. DeRosier filed the motion for summary judgment on the basis of
absolute immunity. Under La.Code Civ.P. art. 966(C)(1):
After adequate discovery or after a case is set for
trial, a motion which shows that there is no genuine issue
as to material fact and that the mover is entitled to
judgment as a matter of law shall be granted.
7
Mr. DeRosier submitted affidavits of his employees in support of absolute
immunity. Prosecutors may have absolute immunity or qualified immunity
depending upon their actions. Prosecutors have absolute immunity when their
actions are “intimately associated with the judicial phase of the criminal process.”
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Additionally, La.R.S. 9:2798.1(B)
states:
Liability shall not be imposed on public entities or
their officers or employees based upon the exercise or
performance or failure to exercise or perform their
policymaking or discretionary acts when such acts are
within the course and scope of their lawful powers and
duties.
However, under La.R.S. 9:2798.1(C)(2), malicious acts do not fall within
Subsection B.
The trial court judge denied the request for the continuance and
granted summary judgment even though Defendants failed to answer timely.
Defendants repeatedly made representations to the court that they would comply
with discovery; however, Defendants later said that discovery would bear on the
ultimate decision and absolute immunity obviated the necessity of certain
discovery. We find that the trial court abused its discretion by denying the motion
to continue because of inadequate discovery.
Furthermore, Mr. Suarez also asserts that the trial court erred by
admitting the affidavits and granting summary judgment when the affidavits were
duplicated and ingenuously claimed personal knowledge of acts in the District
Attorney’s Office. On appeal, Mr. Suarez argues the affidavits were not specific
and not sufficient to support summary judgment.
Under La.Code Civ.P. art. 966(F)(2):
8
Evidence cited in and attached to the motion for
summary judgment or memorandum filed by an adverse
party is deemed admitted for purposes of the motion for
summary judgment unless excluded in response to an
objection made in accordance with Subparagraph (3) of
this Paragraph . . . .
Plaintiff’s counsel never challenged the admissibility of the affidavits
as required by La.Code Civ.P. art. 966 (F)(2). The affidavits are all of employees
of the District Attorney’s Office in their prosecutorial duties. Plaintiff’s counsel
did not oppose the affidavits nor did he file a motion to strike. After submission of
the affidavits, the burden shifts to the party opposing the motion for summary
judgment to show there is a genuine issue of material fact under La.Code Civ.P.
art. 966(C)(2). It was then incumbent on Mr. Suarez to show there was a genuine
issue of material fact.
Although Mr. Suarez alleged malicious prosecution and intentional
infliction of emotional distress in the petition, the trial court indicated that it
thought that malicious prosecution was the primary issue. Plaintiff’s counsel at
neither the first nor the second hearing submitted any evidence. Plaintiff’s counsel
proffered four exhibits at the summary judgment hearing. However, even the
proffered evidence did not timely comply with La.Code Civ.P. art. 966(B)(1). Mr.
Suarez failed to satisfy his burden on opposition to the motion for summary
judgment once the burden had shifted. We further observe, notwithstanding a
motion to object, the affidavits were made from personal knowledge and the
testimony (averments) would be competent and admissible evidence at trial.
Mr. Suarez argues that the trial court erred in finding that the District
Attorney enjoys absolute immunity for administrative functions. Defendants assert
absolute immunity is applicable. The motion for summary judgment was based on
9
the absolute immunity of the District Attorney’s Office and once the affidavits
were filed, it was incumbent upon Mr. Suarez to show a lack of absolute immunity
because the burden of production shifted. The only way for Mr. Suarez to show a
lack of absolute immunity was to show that the actions of Defendants were
administrative functions for which qualified immunity would be applicable.
Mr. Suarez filed the original petition in September 2015, and
propounded discovery in early October 2015. On April 12, 2016, Mr. Suarez
amended the original petition, adding Mr. Pousson as a Defendant. Additionally,
Defense counsel requested an extension to file responsive pleadings. Plaintiff’s
counsel and Defense counsel agreed to an extension until November 13, 2015.
However, on November 19, 2015, Defense counsel filed a motion for summary
judgment rather than responding to pleadings.
Further, at the hearing on April 20th, Defense counsel agreed that he
would provide answers to discovery. The trial court instructed Defendants to
comply with discovery and, according to Mr. Suarez, Defense counsel also assured
him that they would comply and answer discovery. Defense counsel repeatedly
denied receipt of discovery requests, asked for multiple formal and informal
extensions, and impeded efforts to setup depositions. Defense counsel evaded
discovery requests for seven months and relied on his motion for summary
judgment as a tool to avoid discovery.
From the time when the discovery request was received by Defense
counsel on October 9, 2015, until the April 20, 2016 hearing, Defense counsel
ignored discovery requests, claiming he never received them. Following the April
20th hearing, Plaintiff’s counsel attempted to schedule depositions in May, prior to
the hearing that was continued until June, but was unsuccessful. Rather, Defense
10
counsel’s paralegal did not contact the Plaintiff’s counsel’s office manager but the
Plaintiff’s counsel’s office manager had to call the paralegal. The paralegal
ultimately scheduled the depositions for mid-June. The depositions were
subsequently cancelled because of Defense counsel’s refusal to drive to Lake
Charles for two deposition dates because Mr. Pousson was unavailable on the
rescheduled date.
When Mr. Suarez filed a motion to compel and a motion to continue
on May 27, 2016, no discovery had been received and no depositions had been
scheduled since discovery was propounded on October 9, 2015. Plaintiff’s counsel
filed a motion to continue along with the motion to compel because a Memorial
Day weekend would prevent him from preparing for the June 3 rd summary
judgment hearing. However, the trial court denied both motions.
Mr. Suarez argues that the trial court erred in finding no genuine issue
of material fact. Louisiana Code of Civil Procedure Article 966(B)(2) reads, in
pertinent part:
The judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories, and
admissions, together with the affidavits, if any, admitted
for purposes of the motion for summary judgment, show
that there is no genuine issue as to material fact, and that
mover is entitled to judgment as a matter of law . . . .
In Broussard v. Winters, 13-300 (La.App. 3 Cir. 10/9/13), 123 So.3d
902, this court reserved the trial court’s grant of summary judgment premature
when there was not adequate discovery, finding that a question of material fact
remained regarding definitions and terms in the insurance policy at issue. There,
the defendant failed to respond to discovery for nearly a year and the trial court
granted summary judgment even though there was a pending motion to compel.
11
Id. The plaintiff argued in the motion to compel that the definition of terms he
requested during discovery was determinative of his coverage and, therefore, the
crux of the case. Id.
Here, like the plaintiff in Broussard, Mr. Suarez was denied adequate
discovery because Defendants failed to answer discovery for seven months. The
trial court clearly noted absolute immunity was at issue and found that Defendants
were entitled to summary judgment. However, Defense counsel’s failure to
provide discovery, claiming immunity applied, prevented Mr. Suarez from
obtaining adequate discovery and from meeting the burden of production required
of a party opposing a motion for summary judgment. The trial court abused its
discretion when it declared Mr. Suarez’s motion to continue and motion to compel
as moot because discovery was not sufficient for summary judgment.
Defense counsel made it difficult to schedule depositions, only
providing dates which would occur after the summary judgment hearing, and later
cancelling those dates before the hearing. Defense counsel was unwilling to
reschedule, creating additional hinderances for Plaintiff’s counsel. Further,
Defense counsel failed to answer the propounded discovery. Thus, without
discovery and without the ability to depose the Defendants, it is no surprise that
Mr. Suarez was unable to establish whether the Defendants were acting within
their administrative or their ministerial functions when they stamped “Sex
Offender” on his Bill of Information. As such, a question of material fact still
exists. Just as the plaintiff in Broussard needed the definition of terms through
discovery which were determinative of coverage, Mr. Suarez needed this
information because it is determinative as to whether qualified or absolute
immunity applies, which the case hinges upon. Therefore, we find the trial court
12
erred in granting the motion for summary judgment when Mr. Suarez did not
receive adequate discovery to satisfy the burden of production. We remand the
case to the trial court to allow Mr. Suarez the opportunity to conduct adequate
discovery pursuant to La.Code Civ.P. art. 966(C)(1).
Next, we must determine whether the trial court erred in not deeming
Mr. Suarez’s Request for Admission of Fact admitted when Defendants failed to
answer within the specified time under La.Code Civ.P. art. 1467(A). Mr. Suarez
contends that the trial court failed to admit the Request for Admissions when
Defendant did not answer discovery for seven months. On appeal, as argued in
Mr. Suarez’s motion to compel, Mr. Suarez asserts that the delay for objecting or
answering had passed and the movers were entitled to an order compelling an
answer to Interrogatories and Request for Production. Mr. Suarez alleges that the
trial court failed to address Defendants’ failure to answer Requests for Admissions.
Mr. Suarez notes that under La.Code Civ.P. art. 1467(A), a request should be
deemed admitted when Defendants failed to answer or object within fifteen days
after service of the request.
Under La.Code Civ.P. art. 1467(A):
Each matter of which an admission is requested
shall be separately set forth. The matter is admitted
unless, within fifteen days after service of the request, or
within such shorter or longer time as the court may allow,
the party to whom the request is directed serves upon the
party requesting the admission a written answer or
objection addressed to the matter, signed by his attorney,
but, unless the court shortens the time, a defendant shall
not be required to serve answers or objections before the
expiration of thirty days after service of the petition upon
him . . . .
Under La.Code Civ.P. art. 966(F)(2), evidence is deemed admitted
unless excluded in response to an objection. Mr. Suarez appeals a motion for
13
summary judgment and that judgment does not encompass a judgment or a ruling
on the merits on the request for the admissions of fact, nor does the record contain
an interlocutory ruling on the merits of the requests for admissions. Because the
appeal does not include deemed admissions, consideration of this issue is
premature. The other issues alleged by Mr. Suarez in his petition are moot because
adequate discovery was not propounded prior to the trial court’s grant of summary
judgment to determine whether Defendants are immune.
V.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s judgment and
remand to the trial court for the opportunity to propound discovery. All costs are
assessed to the Appellees.
REVERSED AND REMANDED.
14