Kris Catania, individually and on behalf of her minor daughter, Halayna Catania, and Haley Catania VS Sheriff Jack Stephens and the St. Bernard Parish Sheriff's Office (2014CW1292 Consolidated With 2014CA1293)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 CW 1292 KRIS CATANIA, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, HALAYNA CATANIA, AND HALEY CATANIA VERSUS SHERIFF JACK STEPHENS AND THE ST. BERNARD PARISH SHERIFF'S OFFICE CONSOLIDATED WITH NO. 2014 CW 1293 MICHAEL VINCENT CATANIA, JR. AND BRITTANY LYNN CATANIA VERSUS SHERIFF JACK STEPHENS AND THE ST. BERNARD PARISH SHERIFF'S OFFICE 1 Judgmentrendered March 17, 2015. ****** Appealed from the 18th Judicial District Court in and for the Parish of Iberville, Louisiana Trial Court Nos. 69630 and 70493 Honorable James J. Best, Judge ****** 1 The caption of this appeal reflects a consolidation of two separate suits at the trial court level. The suits remain consolidated on appeal. The only issues before this court arise out of the trial court's judgments granting summary judgment in favor of defendants and denying plaintiffs' cross motions for summary judgment. These two judgments were both appealed, and each judgment was assigned a separate appeal number by this court. See Kris Catania, Individually and on behalf of her minor daughter, Halayna tfJ,W Catania, and Haley Catania v. Sheriff Jack Stephens and The St. Bernard Parish Sheriff's Office, 2014-1294 (La. App. 1 Cir. 3/17/15) (unpublished opinion) c/w Michael Vincent Catania 0 Jr. and Brittany Lynn Catania v. Sheriff Jack Stephens and The St. Bernard Parish Sheriff's Office, 20141295 (La. App. 1 Cir. 3/17/15) (unpublished opinion) (Catania II) (also decided this date). ~<1.~ ~~ ~ Ck£l- ~~ ._, ,; 12~ MARK L. ROSS LAFAYETTE, LA ATTORNEY FOR PLAINTIFFS-!ST APPELLANTS KRIS CATANIA, INDIVIDUALLY AND ON BEHALF OF HER MINOR DAUGHTER, HALAYNA CATANIA, AND HALEY CATANIA A. SCOTT TILLERY METAIRIE, LA ATTORNEY FOR PLAINTIFFS-2ND APPELLANTS MICHAEL VINCENT CATANIA, JR. AND BRITTANY LYNN CATANIA MARY ANN HAND SALVADORE. GUTIERREZ, JR. CHALMETTE, LA ATTORNEYS FOR DEFENDANTS-APPELLEES SHERIFF JACK STEPHENS, THE ST. BERNARD PARISH SHERIFF'S OFFICE, AND THE PRINCETON EXCESS & SURPLUS LINES INSURANCE COMPANY ****** BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. 2 PETTIGREW, J. Plaintiffs appeal the trial court's judgment denying their cross motions for summary judgment For the reasons that foiiow, we convert plaintiffs' appeais to applications for supervisory writs and deny their requested relief'. FACTS AND PROCEDURAL HISTORY Michael Catania, the deceased husband of plaintiff, Kris Catania, had previously been married to Dorinda Catania, a St Bt;rnard Paris~ resident. hereto, Michael was a resident of Ibervill~ Parish" At all times pertinent Following his divorce from Dorinda, Michael's child support obligation was ~ourt ord.ered. When Michael fell into arrears on his child support payments, Dorinda initiated charges_ against him in St. Bernard Parish for criminal neglect of family. On September 2, 2009, Dorinda executed an affidavit for an arrest warrant for Michael. Both the affidavit and the subsequent arrest warrant were signed by Justice of the Peace Howard Luna, According to Dorinda, she faxed the affidavit to Deputy Maria Small of the Iberville Parish Sheriff's Office ("IPSO"), and Deputy Small aqvised her that the affidavit was not sufficient to arrest Michael. Rather, Deputy SmaU told her that the St. Bernard Parish Sheriff's Office ("SBPSO") would need to fax the warrant to her. Dorinda testified that SBPSO confirmed with her that they were sending a copy of the warrant to IPSO. On September 22, 2009, Michael surrendered himself in St. Bernard Parish, where he was arrested and incarcerated in the St Bernard Parish jaiL On September 23, 2009, SBPSO marked the warrant satisfied in its ARMMS system,. Michael remained incarcerated until January 14, 2010, when he pied guilty to the charges and was sentenced to 6 months in parish prison, suspended, and placed on unsupervised probation, with certain conditions, including a sentence of 114 days in parish prison with credit for time served. On July 3, 2010, Michael committed suicide, Deputy Small, a 25-year employee of IPSO, testified that she is the Chief Criminal Deputy Secretary and has been in charge of the Warrants Division for approximately 17 years. According to Deputy Small, she received the warrant for Michael's arrest on 3 September 21, 2009, and entered it into day. ner computer ~~s an active warrant on the same Subsequently, when Deputy Smaii learned that Michael was deceased, she contacted SBPSO to advise them of l\1ict1atd's death, Deputy SmaU spoke with Kathy Bayham and advised her that. IPSO wouid be recali1ng the warrant from their system. Deputy Small recalled the warrant on Juiy 6r. 20Hl , Deputy Small indicated that the normal recali procedure for warrants was that the issuing sheriffs office would either call or fax .w.ith notice that the warrant was to be recalled. Deputy Small explained further: So it's your testimony that the only time that you would recall a warrant is when some parish calls you to tell you· that it's been satisfied? Q. A. They can fax me something or they can cc~ll me. Should, in your opinion, in ybur2fyears of: experience, should the Q. St. Bernard Parish Sheriffs Office, when a warrant is satisfied, cail every sheriff in the state of Louisiana and tell them that A. If they sent it-- Q. -- or fax it to them? If they sent it to every parish in the state of Louisiana, they should. A. That's how I do my warrants .. I have .something attached that wherever I sent it to and if it's recalled, I recall it from al! of the parishes that I sent it · to. Deputy Small testified that she had no knowledge of when or even if Michael was ever arrested in St. Bernard Parish. When shown a computer printout from SBPSO's ARMMS system reflecting Michael's warrant ;'SAHSFIED BY ARREST" as of September 23, 2009, Deputy Small indicated that she would have expected to be notified by either phone or fax that Michael's warrant was satisfied, Deputy Small did note, however, that while both IPSO and SBPSO each have an.ARMMS systemf the two were not connected. In a sworn affidavit, Colonel Peter Tufaror the commander/supervisor of the Criminal Records Division of SBPSO, confi~~~d that there: is n'o connection between the ARMMS system in St Bernard and the ARMMS system in Iberville. Colonel Tufaro further noted that the warrant issued by Justice of the Peace Luna on September 3, 2009, for Michael's arrest was not entered into the NCIC system by SBPSO. Finally, Colonel Tufaro explained that he conducted a search of the records maintained by SBPSO and was unable to locate any record indicating that any employee of SBPSO notified IPSO of the 1 warrant issued by Justice of the Peace Luna for Michael s ar~est on September 3, 2009. Deputy Kathy Bayham indicated that she stari:e.d working for SBPSO 5 years ago. She handles the daily operations of the Crim~nai Records Division. With regard to warrants, Deputy Bayham testified that she VIias involved with every aspect, ie., the warrants into ARMMS, issuing the warrants, and recalling warrants. When asked entering about the communication between SBPSO and IPSO, concerning the status of the arrest warrant following Michael's incarceration, the following colloquy occurred: I will follow up on what Mr. "Jl.Hery Wqsdoing, I think we agree that Q. when St. Bernard Parish .entered. into its· [ARM MS] System the arrest warrant for Mr, Catania that .in an~ of itself entering into the [ARMMS] System would not have told . any ·other shenff's offi<;:.e that an arrest warrant existed. They have to ask or find out some other Way? A. Correct. You are speculating a little bit and'! understand t.hat. You were not Q. there. One way or another the St. Bern9rd Parish Sheriffs Office faxed a physical copy of the· ,arrest warrant ats.omebody's request? . . . ' A. Correct. Q. To Iberville Parish? A. Uh-huh (affirmative response,) Now, what would prevent St Bernard, your criminal records section Q. from noting in the [ARM MS] entry or any :other records your department thinks would be reliable a note to the [effect] .. be sure to get back with them if or when it is satisfied? What V.VOUld stop that from happening? That is just noting we faxed a physical copy of the arrest warrant to another parish; b~ sure to get bi:!Ck tq then.1 when it is Sptisfied? . . ',, :., ·' ... • ' ' . We faxed .them a .warnm.t. to Qe. honest with. you. If YO.LI faxed them an open warrant and they offered :infcfrfr1ation, why wouldn't they call months later to see if the warrant .was still good? That is what I would do if the shoe was· on the other foot. I would never arrest anybody ... without finding out if this warrantfrom a ..few months, next year, or last year, or 10 years from now -- we go through that a lot. You might have a warrant for 10 years.. You have got,~- the only safe way ... to avoid human error is to check with [the othei~] agency to see if it is still good. A. Is there anything that would keep the St. Bernard Parish Sheriffs Office from making a note in the -- sounds like relatively few instances -when an arrest warrant is ... actually sent to another sheriffs office to note that be sure to give Iberviiie a can if this is deemed satisfied; let them know? Q. 5. There is nothing to prevent us A. that says we should do that. Q. from doing that but there is nothing This is why I asked? Nobody does it for us either. You knowf I can understand why. A. That is a lot of people you are dealing wittt There [are] a lot of people and parishes. We have not had a problem that I know of. We will give you any information you want Al! you have to do is call 24/7. Let me go over this scenario. · Then ask some questions. Let's Q. assume in this case Mr. Catania turned himself into St. Bernard. St. Bernard Parish enters into its [ARMMS] that the warrant of September 23rd, 2009 is deemed satisfied. I think we are in agreement Iberville Parish Sheriffs Office would not know of that as of September 23[rd], 24th, or what have you. It seems that this opens up a situation where even if you have a far, far less tragic outcome, a person could be arrested by the sheriffs office to whom a warrant had been sent; arrested at his work, at his home. Not a traumatic event; just sorrY-,· sir, turn around. We will have to handcuff you and we will take you dowh to th·e station. It is found out that it is not valid, that would still seem even in' those circumstances to be a real unpleasant event if it: was unnecessary and it would seem that it is not a huge barrier to make a note in the [ARMMS] or some other St. Bernard Parish Sheriffs record .will be sure to follow up with that other parish and let them know if or when it is satisfied? It is the same thing. It is not a very hard thing for that policeman A. or deputy to do -- to know what he should do and call to make sure this person should be arrested before he puts handcuffs on him at his home or on his job. Q. Is there a written protocol for your department criminal records? A. I don't have one. Q. Who would have one? Protocol is the way things are done. That is the way they have A. been done. We .have not had a prqblem with them~ That is how you are trained to accept the phone ta tis when the· deputy -- when any police officer calls, you fir'1d out anything. they n~~d to. .know apd ~hether or not the warrant is good, you make sure Of th~t. You check-your records even though your warrant might say satisfi~d. Yo_i,J.fDake.sure he is arrested for it. It is all in the system right here. · Ybu can pull it all up before you answer that question, you check the '{'!hole ti-ling, That is to -- to me the best way. I have not had a problem with it .. Six months after Michael's release from the St. Bernard Parish jail, Kris received a phone call from a friend, who advised Kris that· she had been questioned at the local WalMart by an IPSO deputy concerning Michael's whereabouts. This prompted Kris to call Deputy Sheriff Stephen Engolio of the IPSO on July 3; 2010, to inquire about the alleged 6 warrant. Deputy Engolio confirmed that theie was, iri fact, a warrant in their system from SBPSO. Because it was a holiday weekend, Deputy Engolio was unable to verify the outstanding SBPSO warrant However, he did instruct Kris that both of them come to his office the following Tuesday so he could "make some calls" about the warrant. Deputy Engolio never told Kris that he would arrest Mi~haeL . Ratherf he advised Kris that if the warrant was valid, Michael 11 could go on down that way" and surrender to SBPSO. Deputy Engolio did confirm, however, that neither IPSO nor SBPSO ever tried to execute the warrant on Michael. Not long after the phonE;! call to Deputy Engolio, Kris told Michael about their conversation. .According to Kris, he was upset, angry, confused, and scared. When Kris attempted to contact the St Bern~rd Parish ja!I about the warrant, she was told that Michael would have to go there himse,lf to find out if there was a warrant. 1 Kris testified that they had gone to. her parents house with the kids that day to visit and eat watermelon. According to Kris, Michael had started drinking at about 10:00 that morning and had consumed about a six-pack of beer. She estimated that he drank his last beer around "2:00ish." Kris also indicated that Michael would normally take Xanax and hydrocodone, twice daily, and assumed th~t he. had taken his morning medicine that day as well. It was on the drive home from her parents' house when Kris made the phone call to the St. Bernard Parish jail. Michael was present during that call and was aware of what Kris had been told. Shortly thereafter, they arrived at home and Michael committed suicide in their backyard, When asked if Michael had ever talked about committing suicide before he was incarcerated in September 2009, Kris indicated that after he was released from prison, Michael had said "he would die before he· eyer had to go back," . She also indicated that . . Michael talked about committing suicid~ on~e before, some time prior to 2009, when he had gotten "down and out" over something that happened with his older children. However, Michael never sought any mental health treatment. Kris testified that on the day of Michaelis suicide, they had discussed the warrant 1 situation with her parents. Michael told them that he "wasn't going back. ' When asked if Michael threatened to kill himself that day, the following colloquy occurred: 7 Q. Was he threatening to kW rmnself at any point during that time? nad ta!kl?d 21bout when they picked He had talked about it W~iL A. him up showing the gun to tne ·de,putie~s whe~r ·they pulled up to get: him and make the deputies shoot h~rR Q. I'm not quit [sic] sure what. you are saying" Explain that to me again. He toid me that he was go~ng to A. . get him. Q. On the warrant? A. walt unt~i. the deputies pulied in to Yes, ma'am. on On November 10, 2010, Kris, individualiy: 03nd behalf of, her minor daughter, Halayna Catania, and Haley Catania (hereinafter collectively refe~red to as "Kris"), filed a petition for damages against Sheriff Jack Stephens and SBPSO · (hereinafter collectively referred to as "defendants"_),. in the 18th Juqicial .District Court ("18th JDC"), Division A, bearing docket number 69630:. Alleging that d~fendants w~r~ n~gligent in failing to expunge the arrest warrant issued for Michaelf Krjs sought damages for Michael's ' ' wrongful death; past and future loss of suppo~; loss of consortium; mental anguish; loss of love, guidance, affection, and companionship; and fl)neral expenses. "' On June 29, 2011, Michael Vincent Catania, Jr.. and Br~ttany Lynn (:atania (hereinafter sometimes referred to as the "Catania plaintiffs")ff the adult children born of the marriage between Michael and Dorinda, filed a similar petition against defendants in the 18th JDC, Division D, bearing docket number 70493, Defendants filed general denials in response to both claims, along with exceptions raising the objections of improper venue, lack of procedural capacity, and no cause of action, On October 31, 2011, the trial court signed an order transferring the Catania plaintiffs' case to Divlsioii signed an order on November 30; A of the 18th .JDC The trial court 201i, cbnsoiidatlng the cases for tria·I. The Catania plaintiffs later amended their suit to add a claim for damages against The Princeton Excess and Surplus Lines Insurance Company ("Princeton"), Princeton was the liability insurer for defendants at all times pertinent hereto, Princeton answered the suit and filed exceptions raising the objections of improper venue, lack of procedural capacity, and no cause of action. Thereafter, defendants filed all the claims against them. a mptlon frJr· Sl,!~i:unary judgment, seeking dismissal of Defendants urged th~~· they were entitled to judgment on liability as a matter of law, as plaintiffs could not prevail on any of the elements necessary duty, cause-in-fact[ and iegal cause. In for a negligence claim; namely, duty,. breach of support of their motion for summary,Judgm~ntr defendants submitted the following: ?, 1) the affidavit executed by Dorind~ on Septe,rnoer 2009, in support of the arrest ' . arrest warrant issued warrant to be issued against Michael;. 2) the the, Luna on September 3, 2009; 3). excerpts from affidavit of Colonel Peter Tufaro, commander . of ·. by Justice of the Peace - '· • ., - >/ ' ' ' - ' • i • ' deposition of Deputy .small; 4) the the' Criminal .Records Division of the . . SBPSO; 5) certified records from lPS.O reg9rding.th~ Warrqnt .at. issue; 6) excerpts from . . .. .... ' . .... ' ' . ' ,. '·'· ·. ' the deposition of Dorinda; 7) excerpts frqni the q~PQ.sit!on of Deputy Engolio; 8) Michael's . . . . medical records from Dr. Gerard Falgoust .date·d ..May ' p, 2009,,indicating'that Michael had . . ; ;, a longstanding history of anxiety disord~r and chroni~ pain syndrorie; and 9} the autopsy ,- ' . ... . .· ,.. ·- ,· report, which confirmed "[m]ultiple dru~ into;x:icatiqrt..i:lnd;:} .blood alc:ohol level of .154. Kris and the Catania plaintiffs opposed def~ndan.ts' motion for summary judgment an.d filed cross motions for surnma,ry juqgment. c.o.ntending that defendants were liable as a matter of law for the wrongful death of. Michael. . Submitted in support of the cross 1) excerpts from the motions for summary judgment were the following exhibits: deposition of Dorinda; 2) excerpts from trie deposition of Deputy Bayham; 3) the affidavit executed by Dorinda on September 2, 2009, in support of the a·rrest warrant to be issued against Michael; 4) excerpts from tr1e deppsitiOf! .of ,Deputy Smail; 5) certified records ~ . • ... ·,, . ,. ; • • ' ; '. • ..•. j ., . • • -_, from IPSO regarding the warrant at issue; 6) excerpts from the deposition of Kris; 7) a 1· . •, message sent by Kris to Dorinda on m.yspace.com: the 'morning before MiChae·i committed suicide, questioning why she Wqs trying.. to. have . him, arrested. again~ 8) a printout from . ·.. ' . ... ·:.:· . ' ' the website thinkstream.com, describing the te~hnology available to law enforcement in Louisiana for communications between databases; 9) a copy of a letter Michael wrote to Kris while he was incarcerated; 10) an unsigned affidavit of Kris' motherr Brenda Griffin; 11) an unsigned affidavit of Kris' father, Wilham Griffin; 12) a note from Cpl. D, Culpepper 9. •,. ' , 2 regarding Michael's warrant and the fact that. the, warrant had two CCN numbers that , , needed to be combined (CpL Culpep~r . also ...ind~ca.ted that because of the two CCN " .. ' numbers, the warrant "did not Load properly'; ,an~tneeded to be satlsfled in ARMMS.); 13) report and affidavit of Dr. Marc L . Zimmerman, a .clinical, medical, and forensic psychologist who was asked to review certa!n documents pertaining to Michael's arrest, incarceration, and suicide; and 14) arrest-related death statistics developed by the United States Department of Justice. Following a hearing on the motions, the trial court ruled from the bench, granting defendants' motion for summary judgment. Jhe trial court found that Michael's suicide was not foreseeable and did not fall within the scope of the duty owed by the defendants. The trial court also denied the cross motkms. f~.r sljrnm~ry judgment filed by Kris and the Catania plaintiffs, noting that there exist~d a genuine issue, of mat.erial fact as to whether SBPSO had notified IPSO that there was an. 9utstanding warrant There are two separate judgments, both.siQned by the· trial addressing the motions. 3 ~ourt on April 8, 2014, The judgment that forms the· basis of the instant appeals provides, in pertinent part, as follows: "IT IS ORDERED, ADJUDGED AND DECREED that the Cross Motions for Summary Judgment filed on behalf of the plaintiffs, Kris Catania, individually and on behalf of her minor daughter, Halayna Catania 1 Haley Catania and Michael Vincent Catania, Jr. and Brittany Lynn Catania, be denied," . . . , . . . On appeal, both Kris and the Catania plaintiffs assign error to the trial court's judgment denying their cross motions fot summary judgment. ·.However, the denial of a motion for summar.f _judgment is an int~r.lotutorY,' JLd~mentthat and, since no writ application has· Tr.ahan v. Rally's been·:'fire.d; ·the ;_issue i~· Hamburgers~ Inc~, 915,,1.837, so.2d 637, 642. See also La. Code:Civ. 2 3 i;: 9 cannot be appealed, not prop~rly before us. (La. Aj:>p. · l Cir, 6/20/97), 696 ·P.=arf.96a~·which states 1n pertinent part: "An According to Deputy Bayham, a CCN number is assigned to an inmate upon arrest. The other judgment signed by the trial court on April 8, 2014; granted the defendants' motion for summary judgment, and forms the basis of the appeal in Catania II. . · appeal does not lie from the court1s refusal to. render any judgment on the pleading or summary judgment. "4 Nonetheless 1 we do have authority to exercise supervisory jurisdiction and treat these appeals as applications for supervisory writs. See Trahan v. Prudential Property & Casualty Ins. Co., 97-2470, p, 3 (La, App. 1 Cir. 5/14/99), 739 So.2d 811, 813. Accordingly, in the interest of judicial economy, where our review of the denial of the cross motions for summary judgment in this case will bring finality to the litigation below, we exercise our discretion and convert the appeals by Kris and the Catania plaintiffs of the denial of their · cross motions for summary judgment to applications for supervisory writs. SUMMARY JUDGMENT5 A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of m~teriartact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia/Inc. v" Vincent, 2010~0116, p. 4 (La. App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 2010-2227 (La. 11/19/10), 49 So.3d 387. While summary judgments are now favored, a motion for summary judgment should only be granted if the · pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for 4 We are aware of a Hne of cases beginning with Devers v, Southern University1 97-0259, p. 16 (La. App. 1 Cir. 4/8/9'Q), 712. So'2d 199, 209 proposing tha,t. a surnmary judgment can be appealed with the final judgment in the case. Employing this principle1 several recent cases, have asserted that it is proper to challenge the denial of a .motion for summary judgment in connection with the appeal of a final judgment granting summary judgment. ·see-Parish N·a·t. Bank:v. Wilks;·2004-1439, p. 4 n~6 (La. App. 1 Cir. 8/3/05), 923 So.2d 8, 11 n.6; Board of Trustees of State Employees Group Benefits Program v. The St. Landry Parish Bd., 2002-039,~, p, ·8 (La. A.PP· 1 Cir. 2/14/03) 1 844 So.2d 90, 95, writ denied, 2003-0770 (La. 5/9/03),. 843 So.2d 404; Pitts Fitzgerald, 2001-0543, p. 5 n.8 (La. App. 1 Cir. 5/10/02), 818 So.2d 847, 850 n.8; Industrial In."em. Co. of t_he Northwest v. Central National Ins. Co. of Omaha, 99-2535, p. 8 (La. App. 1·Cir: 12/22/00); 775 So.2d 1246, 1250, writ denied, 20010225 (La. 4/12/01), 790 So.2d 1. v: 5 The summary judgment in this case was signed on April 8, 2014; thus, it is governed by the version of La. Code Civ. P. art 966 in effect after its amendment by 2013 La. Acts, No. 391, § 1, effective August 1, 2013. See Ciolino v. First Guaranty Bank, 2012-2079, p. 6 n.3 (La. App. 1 Cir. 10/30/13), 133 So.3d 686, 690 n.3. Changes implemented by a later amendment to Article 966 are not implicated in this appeal. See 2014 La. Acts, No. 187, § 1, effective August l, 2014. Smith v. Northshore Regional Medical Center, Inc., 2014-0628, p. _ n.3 (La. App. 1 Cir, 1/26/15), _ So.3d _ , _ n.3 . . 11 purposes of the motion for summary judgment, 6 show that there is no genuine issue as to material fact, and that the movant 1s entitled to summary judgment as a matter of law. La. Code Civ. P. art 966(B)(2), The burden of proof on a motion for summary judgment remains with the movant. However, if the movant wm not ['Jear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on . . ' ' ' the motion does not require him to negate all. essential elements of the adverse party's claim, action, or defense, but rather to 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, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La, Code Civ .. P: art. 966(C)(2). Thus, once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the rnotioli. ,La. Code Civ. P. art. 967(8); Pugh v. St. Tammany Parish School Bd., 2007~l8S6, p. 2 (la. App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 2008'~2316 {la. 11/21/08), 996 So.2d 1113. Moreover, when a motion for summary Judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there remains a genuine issue for trial. If he does not so respond, summary judgment, if appropriate~ shall 'be rendered against him. La. Code Civ. P. art. 967(B). 6 Louisiana Code of Civil Procedure article 966 was recently amended by Acts 2013, No. 391, § 1, to provide for submission of evidence and objections to evidence for motions for summary judgment. Under the amended version of the article, 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 Article 966(F)(3). Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion. La. Code Civ. P. art 966(F){2). Moreover, a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. P. art. 966(F)(1). 12 In determining whether summary. judgment is proper, appellate courts review evidence de nova under the same critena that govern the. trial Seillders whether summary judgment is appropnate Vo_ court's determ'ination of Ashland Oil Inc., 96-1751, p. 7 (La_ App. 1 Cir,. 6/20/91)r 696 So.2d 1031, 103.5f wrJLOfil~, 97··1911 (La. 10/31/97), 703 So2d 29. Material facts ar~those that potentiaH·y ensure or preclude recovery, affect the litigant's success, or deterrnine tne __ outcome of a legal dispute. Populis v. Home Depot, Inc., 2007-2449r p. 3 (La. App. 1 Cir. 5/2/08)1 991 So.2d 23, 25, writ denied, 2008-1155 (La, 9/19/08), .992 So.2d 943. Because it is the applicable substantive law that deterrnines n1ateriaiity, whether a particular fact in dispute is material can be seen only in iig_ht of. the ~ubstantive law applicable to this case. Christakis v. Clipper Const., L.l.C., 2012-1638, pp. 3-4 (La .. App. 1 Cir. 4/26/13), 117 So~3d 168, 170, writ denied, 201~"'1913 {La. 11/8/13), 125 So.3d 454. In this matter, Kris and the Catania· plaintiffs direct this court's attention to their respective appeal briefs filed in Catania II as support for their argument that Michael's suicide fell within the scope of protection of the duty owed by SBPSO to notify IPSO that the arrest warrant for Michael had been satisfied by his voluntary surrender to SBPSO" For the reasons fully discussed in Catania II, we find that the trial court did not err in denying the cross motions for summary judgment CONCLUSION Based on the foregoing, we convert these appeals to applications for supervisory writs and deny the writs. We assess ail costs associated vvith this rr1atter to plaintiffs, Kris Catania, individually and onbehaif of her minor daughter, Haiayna Cataniar Haley Catania, Michael Vincent Catania, Jr., and Brittany LynnCatania.' APPEALS CONVERTED TO APPLICATIONS' FOR SUPERVISORY WRITS; WRITS DENIED. 13 KRIS CATANIA, ET AL. FIRST CIRCUIT VERSUS COURT OF APPEAL SHERIFF JACK STEPHENS AND THE ST. BERNARD PARISH SHERIFF'S OFFICE STATE OF LOUISIANA NO. 2014CW1292 Consolidated With MICHAEL VINCENT CATANIA, JR. AND BRITTANY LYNN CATANIA FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA SHERIFF JACK STEPHENS AND THE ST. BERNARD PARISH SHERIFF'S OFFICE pt NO. 2014 CW 1293 CHUTZ, J., concurring. I respectfully concur in the result reached by the majority upholding the denial of the plaintiffs' motions for summary judgment. It was unnecessary, however, to convert this appeal to a writ application, since the plaintiffs also appealed the summary judgment granted in favor of the defendants. It is wellestablished that the denial of a motion for summary judgment can be reviewed in connection with the appeal of a final judgment granting summary judgment. See Parish National Bank v. Wilks, 04-1439 (La. App. 1st Cir. 8/3/05), 923 So.2d 8, 11 n.6.

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