Donald Britton VS Harris Hayes, Ed Kaglear, Good Shepherd Full Gospel Missionary Baptist Church, Inc. and Good Shepherd Resource & Substance Abuse Center, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2229 DONALD BRITTON VERSUS HARRIS HAYES ED KAGLEAR GOOD SHEPHERD FULL GOSPEL GOOD SHEPHERD MISSIONARY BAPTIST CHURCH INC RESOURCE SUBSTANCE ABUSE CENTER LLC Judgment Rendered JUN 1 1 2010 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 555 169 Honorable Kay Bates Judge Presiding Baker Louisiana PlaintiffAppellant In Proper Person Jennifer W Moroux Counsel for DefendantAppellee Keely Y Scott Baton Rouge Louisiana Harris Hayes Ed Kaigler Good Rev Donald Britton Shepherd Full Gospel Missionary Baptist Church Inc Shepherd Resource Abuse Center LLC Good Substance BEFORE DOWNING GAIDRY AND McCLENDON JJ McCLENDON J Plaintiff Donald Britton appeals a judgment granting a motion for summary judgment that dismissed his claims against the defendants For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY On December 30 2005 Shepherd Full Gospel Missionary Baptist Church Inc the Church Center the Center incorporated Good Shepherd Resource Substance Abuse On that same date Britton entered into an agreement with Bishop Harris Hayes the pastor of the Church which provided that Hayes would be the clinic overseeradministrator while Britton would be the program s director The agreement also provided Harris Hayes would receive 60 of the revenue received from the Center while Britton would receive 40 of the revenue These amounts were to be paid after deduction for employee salaries telephone bill and light bill The agreement also addresses Britton duties as director of the Center s Specifically Britton was to supervise the operation of the clinic to include keeping compliance with all state and federal law and was required to provide for his own professional liability insurance The agreement was binding for thirty six months after the operation of the clinic begins As recipient of an Access to Recovery ATR federal grant the Center was required to operate under the guidelines of the Access to Recovery program and the Louisiana Office for Addictive Disorders OAD Louisiana Department of Health and Hospitals DHH a division of the ATR authorizes eligible entities to provide services to ATR clients on a fee for service basis The s Center fee for service billing must be consistent with DHH policy and ATR guidelines and services claimed for reimbursement must be supported with adequate documentation 2 During Britton tenure as director OAD performed an audit of the s s Center records OAD performed a limited review of the Center reports and s financial statements through September 30 2006 The auditor randomly selected ten client files for review out of seventy clients billed for services one Two of the ten files could not be located For these two alleged clients ATR was billed 785 The auditor also reviewed the Center 00 slog forms which revealed that transportation services were not properly documented The auditor noted that of the 571 transportation services billed to DHHOADAccess to Recovery Program only 11 were documented The total amount billed to DHHOAD Access to Recovery Program for the undocumented services totaled 17 00 391 As a result of the audit OAD recommended that the Center reimburse DHHOAD 00 176 18 Moreover from September through December 2006 Hayes attested that both the Center and the Church received multiple complaints of sexual harassment made against Britton by females associated with the Center On December 19 2006 Hayes sent Britton correspondence to inform Britton that complaints had been made by three employees provided Britton the names of the employees and stated that if Britton conduct is not immediately corrected s other action will be pursued On December 21 2006 Ed Kaigler Jr head of the Board of Directors of the Church notified Britton that a meeting had been scheduled for December 28 2006 to address among other things concerns about the audit and the sexual harassment allegations against him Kaigler requested Britton to bring a copy of all documents that outline and describe the Agreement between the Center and The following were listed as objectives of the audit 1 To determine if fee for service billing is consistent with DHH policy ATR guidelines and other applicable statefederal regulations 2 To determine if fee for services claimed for reimbursement were supported with adequate documentation 3 To determine if provider has a balanced set of financial records with reconciled bank statements consistent with generally accepted accounting principals 3 the State Funding Source Community Development Block Grant billing procedures audit reports monthly and or quarterly reports and any other documents pertaining to the fiscal and programmatic status of the Center On January 2 2007 Britton was again asked to provide all documents pertaining to the OAD audit Despite the requests Kaigler and Hayes both attested that Britton failed to provide any documentation in connection with the audits On January 16 2007 Kaigler terminated Britton for ignoring requests by the Board and Hayes to produce information relating to the audits and due to allegations of inappropriate sexual advances toward females at the Center On May 10 2007 Britton filed a petition for damages naming Hayes Kaigler the Church and the Center as defendants Britton alleged that the accusations that he ignored requests to produce information and that he made inappropriate sexual advances towards female employees at the Center were false and that the accusations damaged his reputation and good name Britton asserted that the motivation for his termination was to deny Britton his 40 share of the revenue Moreover Britton alleged that since the inception of the Center through his termination on January 16 2007 additional expenses beyond employee salaries telephone bills and light bills were deducted from his share of the revenue such that he never received the full amount of compensation required pursuant to the terms of the agreement Britton sought among other things compensation for the reduction beyond that contractually agreed to from inception of the Center through January 16 2007 his 40 interest in the revenue from January 16 2007 through the end of the 36 month term and damages for injury to his reputation and good name On August 10 2009 the defendants filed a Motion for Summary Judgment asserting that Britton cannot carry his burden of proof with regard to any claims adverse to them Britton opposed the defendants motion On October 5 2009 the trial court granted the defendants motion finding that there are no genuine issues of material fact and the defendants are entitled to judgment as a matter of law On October 27 2009 the trial court signed a 0 written judgment dismissing Britton claims against the defendants with s prejudice Britton has filed the instant appeal to seek review of the trial court s ruling Because this matter is before us on a motion for summary judgment it is subject to de novo review as to the whether the grant of summary judgment was appropriate Motorola Inc v Associated Indem Corp 020716 p 5 App La 1 Cir 6 878 So 824 828 writs denied 04 2314 042323 04 25 2d 042326 04 2327 La 11 888 So 207 211 212 04 19 2d The summary judgment procedure is expressly favored in the law and is designed to secure the just speedy and inexpensive determination of nondomestic civil actions LSAC art 966 Summary judgment is appropriate if the pleadings P C 2 A depositions answers to interrogatories admissions and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law LSAC art 966 P C B The mover has the initial burden of proof that he is entitled to summary judgment See LSAC art 966 If the mover will not bear the burden P C 2 C of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his s opponent claim action or defense See LSAC art 966 If the P C 2 C moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense then s the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial See LSAC art 966 If the mover has put P C 2 C forth supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial LSAC art 967 P C B Z Plaintiff has not assigned as error nor briefed the trial court ruling with regard to damages s for injury to his reputation or good name so this issue is not subject to our review on appeal 5 In his initial assignment of error Britton asserts that the trial court erred in finding that he was an employee of the Center Rather Britton contends that he was a partner in the Center and not subject to termination We disagree The Center was incorporated on December 30 2005 with the Church being designated as its sole shareholder Later the Center was converted to a Limited Liability Company with the Church being designated as the sole owner of the membership interest Britton had no proprietary interest in the property or stock of the Center Medline Indus v All Med Supply Equip 94 1504 p 5 App La 1 Cir 4 653 So 830 833 Britton also had nothing at risk in 95 7 2d The mere the entity other than securing profits to receive a paycheck agreement to share the profits of an enterprise is not sufficient to establish a partnership or joint venture See e Medline Indus 94 1504 at p 653 g 5 2d So at 833 all parties must share in the losses as well as the profits of the venture see also LSAC art 2801 C Moreover in his deposition Britton admitted that he had no ownership interest in the Center Rather the agreement between Britton and the Center was an employment contract The employer employee relationship is evidenced by four factors 1 selection and engagement 2 payment of wage 3 power of dismissal and 4 power of control Chailland Bus Consultants v Duplantis 032508 p 6 La 1 Cir 10 897 So 117 123 writ App 04 29 2d denied 042922 La 2 893 So 878 Herein Hayes acting on behalf of 05 4 2d the Center selected Britton to work as the Center director and Britton was paid s a wage for his services in the form of 40 of the Center revenues after s deduction of certain expenses certain Although Britton had the power to dismiss employees the Center retained the power to terminate s Britton employment for failing to fulfill the duties set forth in his employment contract Moreover the agreement specifically provided that Hayes will be the overseeradministrator of the substance clinic while Britton had the authority to supervise the operations of the Center Most importantly Hayes as administrator had the power of control over Britton including the right to C terminate Britton Accordingly because the contract at issue was an employment contract with a 36month term the first assignment of error has no merit In his second assignment of error Britton asserts that the trial court erred in finding that he violated the terms of his employment contract In his third and fourth assignments Britton contends that the defendants are still indebted to him under the employment contract Because there is an employment contract with a definite term the defendants bear the burden of proof at trial and on the motion for summary judgment to establish just cause or serious ground for complaint for termination of Britton employment during the term of the s contract LSAC art 966 LSAC art 2749 P C 2 C C The employment agreement required Britton to supervise the operation of the clinic to include keeping compliance with all state and federal law Accordingly Britton was required to follow all regulations set forth by DHH and OAD to obtain reimbursement under the ATR Program report those procedures especially in connection As reflected in the audit with the transportation services were not routinely followed Although Britton claims that he could not be terminated for overbilling because the audit report was not published until after he was terminated Britton acknowledged that all of the violations reported in the audit occurred while he was the Center director Britton also admitted that he was responsible for the s billing and the transportation logs and that the auditor investigating the discrepancies met with him numerous times s Britton testimony was confirmed by Larry Morris an OAD employee who was the lead auditor of the Center Morris indicated that he communicated solely with Britton about the audit because he considered Britton to be the person in charge of the daily operation Morris testified that he gave Britton an opportunity to find the 3 Louisiana Civil Code article 2749 provides If without any serious ground of complaint a man should send away a laborer whose services he has hired for a certain time before that time has expired he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive had the full term of his services arrived 7 documentation to substantiate the claims but Britton was unable to do so In addition the defendants submitted the affidavits of Kaigler and Hayes who both attested that Britton failed to provide them any documentation pertaining to the audits despite repeated requests that he do so Moreover the contract required Britton to maintain his own professional liability policy Defendants acknowledge that Britton produced a Certificate of Insurance Occurrence Policy Form effective 5 through 6 but note 05 31 06 31 that Britton has not provided any proof of insurance from July 2006 through his termination in January 2007 In light of the foregoing we conclude that the defendants met their initial burden to show that Britton was terminated for just cause for his material breach of the terms of the contract Because defendants put forth supporting proof to show that Britton was terminated for just cause Britton may not rest on the mere allegations or denials of his pleading but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial LSAC art 967 P C B Britton alleges in his opposition brief submitted to the trial court as well as in his appellate brief in this court that Hayes simply did not provide the auditor with the fuel receipts to validate the transportation billing Britton also asserts that he properly instructed the drivers on the appropriate paperwork that DHH and OAD required but that Hayes told the drivers not to follow Britton s instructions Generally argument of counsel and briefs no matter how artful are not sufficient to raise a genuine issue of material fact Wilson v Davis 07 1929 p 15 La 1 Cir 5 991 So 1052 1063 writs denied 08 App 08 28 2d 2011 082020 La 11 996 So 1070 996 So 1071 Even assuming 08 10 2d 2d that we could consider these statements despite the fact that they were not submitted in the form of an affidavit4 the assertions are self serving and 4 We recognize that the jurisprudence has consistently held that pro se plaintiffs should be allowed more latitude than plaintiffs represented by counsel because they lack formal training in the law and its rules of procedure Gray v State 050617 p 13 La 3 Cir 2 923 App 06 15 2d So 812 821 M unsubstantiated See Colon v Colon 43 p La 2 Cir 2 6 956 8 App 09 25 3d So 304 308 unsubstantiated and self serving evidence did not support denial of summary judgment As such Britton has failed to set forth specific facts showing that there is a genuine issue for trial with regard to whether he was terminated for just causes Britton also urges that the defendants deducted additional expenses beyond those that the parties agreed upon in the written contract We note that written contracts may be modified by oral contracts or by the conduct of the parties Fleming v J Merit Constructors Inc 070926 p La 1 E 9 App Cir 3 985 So 141 146 Modification of a written agreement can be 08 19 2d presumed by silence inaction or implication Fleming 070926 at p 985 9 2d So at 146 In his affidavit Hayes attested that after the terms of the contract were agreed upon he and Britton decided that the Center needed a larger area in which to treat patients so Hayes began renting a vacated hotel to house and treat the patients which increased the expenses and revenues of the Center Hayes attested that w Britton verbal consent the Center withheld rental ith s payments from Mr Britton salary Moreover Hayes attested that Britton never s challenged these additional withholdings until he was notified of the sexual harassment complaints asserted against him Britton has not challenged either through affidavit or in his brief to this court Hayes attestations that the parties agreed to this oral modification As such Britton has failed to show that a genuine issue of material fact remains for trial Therefore assignments of error numbers 2 3 and 4 are without merit 5 Although the defendants assert that the sexual harassment claims were additional grounds to terminate Britton for cause we need not address that issue having found other sufficient grounds for termination 6 In his fifth assignment of error Britton asserts that the defendants are responsible for having to pay the State the sums due This assignment of error is immaterial and presents no justiciable issue for our review 0 DECREE For the foregoing reasons we affirm the judgment of the district court Costs of this appeal are assessed against appellant Donald Britton AFFIRMED 10
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