Trombettas v. Williams

1

ANASTASSIA TROMBETTAS v. ANGELA COX WILLIAMS, AMANDA DESORMEAUX, AND DONNA NEVELS

No. 2023 CA 0250

Court of Appeals of Louisiana, First Circuit

September 15, 2023

On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana No 2022-11833 The Honorable Reginald T. Badeaux III, Judge Presiding

Richard L. Ducote Covington, Louisiana Attorney for Plaintiff/Appellant Anastassia Trombettas

David S. Daly Elliot M. Lonker New Orleans, Louisiana Attorneys for Defendant/Appellee Angela Cox Williams

Donna Nevels Confidential address Defendant/Appellee Self -represented litigant

Gus A Fritchie, III New Orleans, Louisiana Attorney for Defendant/Appellee Amanda Desormeaux

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.

HOLDRIDGE, J.

Plaintiff, Anastassia Trombettas, appeals from a trial court judgment granting a motion for summary judgment in favor of a defendant, Angela Cox Williams, and dismissing her claims against Ms. Williams with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 5, 2022, Ms. Trombettas filed suit against Ms. Williams, Amanda Desormeaux, and Donna Nevels, alleging that Ms. Williams employed Ms. Desormeaux and Ms. Nevels in her law practice. Ms. Williams represented Ms. Trombettas' former husband, John Nevels, in his divorce litigation against Ms. Trombettas.^[1] Ms. Desormeaux was the daughter of Mr. Nevels and Ms. Nevels, who were formerly married.

In her petition, Ms. Trombettas alleged that Ms. Desormeaux and Ms. Nevels tortiously acted to assist Ms. Williams in her legal representation of Mr. Nevels while within the course and scope of their employment with her. Specifically, Ms. Trombettas alleged that on January 4, 2020, Ms. Desormeaux and Ms. Nevels committed identity theft by assuming Ms. Trombettas' identity and creating a Credit Karma account in her name, using her social security number, without her knowledge or consent. According to Ms. Trombettas, they wanted to invade her privacy and access her confidential credit reports and financial information. She alleged that they gave the information they obtained to Ms. Williams to use in Mr. Nevels' divorce litigation against her from January 4, 2020 through February 14, 2021.

Ms. Trombettas alleged that the defendants' conduct constituted a tortious invasion of privacy and a violation of the Fair Credit Reporting Act. She alleged that Ms. Williams was also liable for negligently supervising her employees pursuant to La. C.C. art. 2320. Ms. Trombettas sought damages for physical and emotional distress, financial loss, exposure to further identity theft, and loss of privacy.

Ms. Nevels answered the petition as a self-represented litigant, alleging that Ms. Williams was never her employer or supervisor. She also alleged that she had no knowledge of any such Credit Karma account other than the allegations set forth in Ms. Trombettas' petition.^[2]

Ms. Williams filed a motion for summary judgment wherein she contended that she committed no tortious acts against Ms. Trombettas, nor was she vicariously liable for any alleged tortious acts of Ms. Desormeaux or Ms. Nevels.^[3]

Ms. Desormeaux answered the petition on September 7, 2022, and admitted that she checked Credit Karma for outstanding accounts in the name of Mr. Nevels and Ms. Trombettas due to Mr. Nevels' concerns that Ms. Trombettas had previously opened several credit cards in his name without his knowledge or consent in excess of $20,000.^[4] Ms. Trombettas responded to the summary judgment motion with an objection to the consideration of and a motion to strike Ms. Williams' affidavit. She also filed an opposition to the summary judgment motion, wherein she contended that there were genuine issues of material fact as to whether Ms. Desormeaux's actions were performed in her capacity as an employee of Ms. Williams and whether they were closely connected in time, place, and causation to employment duties.

The trial court held a hearing wherein it granted Ms. Williams' summary judgment motion. In granting the motion, the trial court noted that Ms. Desormeaux stated her motive and testified that her actions were neither employment-related nor incidental to her employment duties. The trial court signed a judgment on November 15, 2022, granting Ms. Williams' motion for summary judgment and dismissing the claims brought against her by Ms. Trombettas with prejudice.^[5]

Ms. Trombettas appeals from the judgment. On appeal, Ms. Trombettas contends that the trial court erred in denying her objection to the police reports attached to Ms. Williams' affidavit supporting her motion for summary judgment. She also contends that the trial court erred in granting Ms. Williams' motion for summary judgment and dismissing the suit with prejudice.

Ms. Williams filed a motion to strike portions of Ms. Trombettas' reply brief for a violation of Uniform Rules-Courts of Appeal, Rule 2-12.2(B), for a contempt of court finding under La. C.C.P. art. 222(3), and for an award of costs and attorney's fees incurred in bringing the motion.

SUMMARY JUDGMENT

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. See La. C.C.P. art 966(A)(3); Lucas v. Maison Insurance Co., 2021-1401 (La.App. 1 Cir. 12/22/22), 358 So.3d 76, 83-84.

The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2). The purpose of a motion for summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 769 (per curiam). After an adequate opportunity for discovery, 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 only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4).^[6]

On a motion for summary judgment, the initial burden of proof rests with the mover. See La. C.C.P. art. 966(D)(1); Lucas, 358 So.3d at 84. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, after meeting her initial burden of showing that there are no genuine issues of material fact, the mover may point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence 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. See La. C.C.P. art. 966(D)(1).

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. See La. C.C.P. art. 966(D)(2).^[7]

In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether there is a genuine issue of material fact. Collins v. Franciscan Missionaries of Our Lady Health System, Inc., 2019-0577 (La.App. 1 Cir. 2/21/20), 298 So.3d 191, 194, writ denied, 2020-00480 (La. 6/22/20), 297 So.3d 773. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, summary judgment is appropriate. Id. at 194-95. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Id. at 195.

Summary judgment is seldom appropriate for determinations based on the subjective facts of intent, motive, malice, good faith or knowledge. See Jones v. Estate of Santiago, 2003-1424 (La. 4/14/04), 870 So.2d 1002, 1006. These subjective facts call for credibility evaluations and the weighing of testimony. Id. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC v. Education Partners, Inc., 2008-0734 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 232. Furthermore, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Irving v. Katie Santo, Inc., 2018-1619 (La.App. 1 Cir. 6/13/19), 2019 WL 2609035 at *5 (unpublished); Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La.App. 2 Cir. 4/4/07), 954 So.2d 883, 891. writ...