Lionel A. Butler and Jennifer Butler, Individually and Administrator of the estate of their minor children, Lynell Butler and Maggie Butler and Brian A. Ruffin VS Zathan Boutan, Motel 6 Operating, L.P. and Accor North America, Inc. (2013CW0260R)
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NOT DESTGNATED FOft PIJBLTCATION E STA OF LOI ISTANA COURT JF APPEAL lf FIR CIRCfJIT NO 2013 CW 0260Ft LIONEL A BUTLER AND JENNIFER BUTLER INDIVIDUALLY AND ADMINISTRATOR OF THE STATE OF THEIR MINOR CHILDREN LYNELL BUTLER AND MAGGIE BUTLER AND BRIAN A RUFFIN VERSUS ZATHAN BOUTAN MOTEL 6 L AND PERATING P I ACCOR NORTH AMERTCA INC ludgment rendered E 5 2 3 V On Remand from the Supreme Court of Louisiana on Application for Supervisory Writs from the Judgment of the 18 Judicial District Cour in and for the Parish of West Baton Rouge Louisiana Trial Court No 38 713 Honoralble James J Best Judge CY J D AQUILA JR JEROME C ATTORNEYS FOR AQUILA D RESPONDENTS PLAINTdFFS NEW ROADS LA LIONEL A BUTLER ET AL MICHAEL R SISTRUNK ATTORNEYS FOR MATTHEW J GARVER RELATORS DEFENDANTS COVINGTON LA MOTEL 6 OPERATING L AND P ACCOR NORTH AMERI INC A BEFORE KUHN PETTIGREW and McDONALD 77 PEITIGREW J At issue herein in this writ application is whether the trial court was correct in denying defendants Motel 6 Operating L and its parent company Accor North America P s Inc Motion for Summary Judgment FACTS AND PROCEDURAL HISTORY Plaintiffs filed a suit for damages against Motel 6 Operating L Accor North P America Inc and Deputy Zathan Boutan alleging the fault of Boutan individually and as an employee of Motel 6 for wrongful arrest false imprisonment battery assault and intentional infliction of emotional distress Defendants Motel 6 and Accor filed a motion for summary judgment They sought to dismiss the claims against them on the following legal issues whether Boutan was acting as an employee or an independent contractor of Motel 6 in his role as a security guard and whether they were vicariously liable for s Boutan actions The 18 Judicial District Court denied the motion finding that neither side proved its entitlement to judgment as a matter of law Motel 6 and Accor filed an application for supervisory writs with this court After conducting a de nouo review we denied the writ Motei 6 and Accor then applied for writs with the Louisiana Supreme Court which were granted The Supreme Court remanded the matter to this court and ordered briefing argument and a full opinion Upon receiving the record on remand we observed there is no record of service or notice to Boutan of the motion for summary judgment and the order signed in connection therewith Boutan has not been represented by counsel since his counsel withdrawal on s February 11 2011 The instant mation for summary judgment was filed on August 17 2012 The Certificate of Service indicates it was mailed to all counsel of record The rule to show cause attached to the motion requested that service be made upon plaintiffs counsel and Boutan in proper person The rule however was stricken through and a handwritten note was added stating please see attached order The order referred to Hereinafter Motel 6 Operating L will be referred to as Motel 6 Accor North America Inc will be P referred to as Accor and Deputy Zathan Boutan will be referred to as Boutan 2 was signed by the trial court on August 23 2012 Therein the trial court ordered the parties opposing the motion to file memoranda into the record noting the matter would then be taken under advisement without oral argument The order instructed the clerk to forward notice to all counsel of record it did no include mention of pro se defendant Boutan Nowhere in the record is there any indication that Boutan who has represented himself since February 2011 was sent notice of the motion and order at issue here Therefore on October 23 2013 we continued oral argument of this matter due to the incomplete record and pursuant to the consent of the parties who filed briefs and appeared before us that date We instructed counsel to research the record and prepare a joint motion to supplement it with reference to any notice provided to Boutan On October 25 2013 plaintiffs and defendants Motel 6 and Accor filed a joint motion to supplement the record They stated that they received a Notice ofSigningof the trial court order regarding the motion for summary judgment but nothing in the s record indicates that the notice was sent to Boutan Accordingly the parties requested that this court order that the record be supplemented with the motion and attached exhibits that the trial courCs judgment denying the motion for summary judgment be vacated and that the matter be remanded to the trial court for rehearing DISCUSSION Adequate notice is one of the most elementary requirements of procedural due process After the original action is filed and properly served almost every contested dispute involves the filing of subsequent pleadings by the parties Procedural due process requires that an adverse parry receive fair notice of the content of every pleading and of the action requested and be given a easbnable opportunity to respond Pursuant to La Code Civ P art 1313 a pleading or order that sets a court date C must be served by registered or certified mail or as provided in La Code Civ P article 1314 Article 1314 provides that the pleading must be served by the sheriff by either 1 service on the adverse party in any manner authorized by La Code Civ P arts 1231 through 1266 or 2 personal service on the adverse party counsel of record or delivery s 3 of a copy of the pleading to the lerk o eourt if there is no counsel of record and the address of the adverse party is not known In addition to the above referes articles relative to service of pleadings La ceG Code Civ P art 966 requires that a mration for ss judgment be served at least B mary r fifteen days before the time specified for the hearing This is designed to give fair notice of the evidentiary and legal bases for the motion An adverse party then has time to respond with evidentiary documentation of owr either in the form of affidavits or his discovery responses and to be prepared to meet the legal argument of the moving party Here there is no evidence of record that Boutan was served with the motion and order as required by law These procedurai irregularities deprived Boutan of the opportunity to be heard as well as notice of the pendency of the action We consider Boutan to be adverse to the interests of the other defendants Motel 6 and Accor because whatever relationship is determined to exist between them will necessarily have a direct bearing on the ultimate outcome of the litigation In the present case plaintiffs allege that Motel 6 is vicariously liable for the actions of Boutan If proven that could affect the percentage of fault ultimately assessed to Boutan Under these circumstances we find that Boutan should have been given the opportJnity to respond to the motion as he has very a real and actual interest in this litigacion Even if Boutan was not considered to be an adversE party under La de Civ P art 966 enkitling him to B service of the motion and supporting docume at least fifteen days before the hearing ts he was entitled to notice of the hearing date under La Code Civ P arts 1571 We hold that Boutan is entitled to notic and an opportunity to respond and present his position Because of the due process implications involved herein this court finds that it has no alternative but to vacate the judgment denying summary judgment and to remand for a new hearing on the motion to be held after legally sufficient service of the motion as well as notice of the time and place of the hearing is had upon Boutan Z See Hornage v Cleco Power L 2004 La App 3 Cir 4 899 So 153 C 1492 OS 6 2d 4 uszoN coNC For the above and faregoi rsasc the aria co ruling signed January 8 G ns s rt 2013 denying the rraotion for sumrnary jiadymQr rtFilsd ay efendanks Motel 5 Operating LP and Accor North America I os vdc a this rnatter is e to the trial c at i ianded court for further proceedings JUDGMENT OF JANUARY 2013 i ACATEBp itEMANDED 5
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