Anastassia Trombettas v. Angela Cox Williams, Amanda Desormeaux, and Donna Nevels ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2023 CA 0250
ANASTASSIA TROMBETTAS
MWA3161
ANGELA COX WILLIAMS, AMANDA DESORMEAUX,
AND DONNA NEVELS
Judgment Rendered: SEP 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, .fudge Presiding
Richard L. Ducote Attorney for Plaintiff/Appellant
Covington, Louisiana Anastassia Trombettas
David S. Daly Attorneys for Defendant/ Appellee
Elliot M. Lonker Angela Cox Williams
New Orleans, Louisiana
Donna Nevels Defendant/Appellee
Confidential address Self -represented litigant
Gus A. Fritchie, III Attorney for Defendant/Appellee
New Orleans, Louisiana 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.
PACTS AND PROCEDURAL HISTORY
On May S, 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.
t We note that Ms. Trombettas was identified as " Anastassia Trombettas Nevels" in the divorce
litigation.
2
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 r-epresented 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
21n Ms. Trombettas' appellate brief, she " concedes that [ Ms.] Nevels was not actually employed
by Ms.... Williams, but that her email address was the one used by Ms. Desormeaux to create the
fake Credit Karma account in Ms. Trombettas' name."
3 We note that in Ms. Williams' summary judgment motion, she sought attorney' s fees and costs
incurred in defending the suit, and she cited La. C. C. P. art. 863 in her memorandum supporting
the summary judgment motion. However, the rule to show cause order setting the matter for
hearing referred to the summary judgment motion and the dismissal of Ms. Trombettas' claims
against Ms. Williams. It did not refer to attorney' s fees and costs, nor was this issue raised at the
summary judgment hearing.
4 In her answer, Ms. Desormeaux admitted that she was employed by Ms. Williams, and she denied
that Ms. Williams had any knowledge of the Credit Karma account until she was served with Ms.
Trombettas' petition. She also denied the allegations that Ms. Nevels worked for Ms. Williams
and that Ms. Trombettas sustained any damages.
3
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.'
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.
5 The trial court designated the judgment as final pursuant to La. C. C. P. art. 1915, but the
designation was unnecessary as the judgment dismisses a party from the suit and is therefore final
pursuant to La. C. CP art. 1915( A)(1). See Liberty Mutual Fire Insurance Co. v. Harris, 2022-
0429 (La. App. l Cir. 1114122), 355 Said 628, 632 n. 3, writ denied, 2022- 01747 ( La. 217123), 354
So3d 671
4
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. 12122122),
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
The motion for summary judgment at issue on this appeal was filed and decided under La. C. C. P.
art. 966 prior to its amendment by 2023 La. Acts No. 317, § 1, and 2023 La. Acts No. 368, § 1,
which became effective on August 1, 2023.
bi
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).'
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
7 We note that La. C. C. P. art. 966( D)( 2) has been amended by 2023 La. Acts No. 317, § 1, to
read as follows, with the changes emphasized:
The court shall consider only those documents fled or referenced in support of or
in opposition to the motion for summary judgment but shall not consider any
document that is excluded pursuant to a timely filed objection. 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 whether the court sustains or
overrules the objections raised.
Emphasis added.)
6i
Missionaries of Our Lady Health System, Inc., 2019- 0577 ( La. App. 1 Cir.
2121120), 298 So. 3d 191, 194, writ denied, 2020- 00480 ( La. 6122120), 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. 4114104), 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.
12123108), 5 So. 3d 225, 232. Furthermore, the circumstantial evidence usually
necessary for proof of motive or intent requires the trier -of f-act 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. 6113119), 2019 WL 2609035 at * 5
unpublished); Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42, 072
La. App. 2 Cir. 414107), 954 So. 2d 883, 891, writ denied, 2007- 1146 ( La. 9/ 14/ 07),
963 So. 2d 1001.
TORT LIABILITY
In determining whether the trial court erred in granting Ms. Williams'
summary judgment motion, the court must consider whether she was vicariously
7
liable in accordance with La. C. G. art. 2320.8 Louisiana Civil Code article 2320
provides that " employers are answerable for the damage occasioned by their servants
in the exercise of the functions in which they are employed." The Louisiana
Supreme Court has adopted a four -factor standard in determining an employer' s
vicarious liability for an employee' s intentional torts. See Baumeister v. Plunkett,
95- 2270 ( La. 5121.196), 673 So.2d 994, 996- 97 ( relying on Lebrane v. Lewis, 292
So. 2d 216, 218 ( La. 1974)). The four factors are as follows: ( 1) whether the tortious
act was primarily employment -rooted; ( 2) whether the violence was reasonably
incidental to the performance of the employee' s duties; ( 3) whether the act occurred
on the employer' s premises; and ( 4) whether it occurred during the hours of
employment. Baumeister, 673 So.2d at 996- 97. Although all four factors are not
required for vicarious liability, an employer is not vicariously liable merely because
his employee commits an intentional tort on the employer' s premises during working
hours. Id. at 997. Baumeister contains further language that is helpful in this
analysis, providing that employment -rooted conduct should be contrasted from
conduct that is motivated by purely personal considerations entirely extraneous to
the employer' s interest. Id. at 997.
SUMMARY JUDGMENT EVIDENCE
Ms. Williams' summary judgment motion was supported by her affidavit and
the affidavits of Ms. Nevels and Ms. Desormeaux.4 In her affidavit, Ms.
Desormeaux stated that she was employed by Ms. Williams and Ms. Williams' law
s Ms. Trombettas in her appellate brief conceded that Ms. Williams was not personally involved
in the identity theft and that Ms. Williams' only liability would stem from the employment of Ms.
Desormeaux under La. C. C. art. 2320.
R Ms. Nevels' affidavit reiterated the allegations in her answer that she never worked for Ms.
Williams and that she was unaware of the Credit Karma account until suit was filed.
8
office as a part-time receptionist and legal assistant from February of 2018 to May
of 2021. Ms. Desormeaux stated:
In approximately late 2019, I created a Credit Karma account in
the name of [Ms.] Trombettas, who was my step mother at the time. I
did not create this account while working and did this after hours at my
house and without the knowledge of or instruction of [Ms. Williams
and the law office] or anyone else associated with the law office....
She then stated that to create the account she used the email address containing the
name of her mother, Ms. Nevels, who had no knowledge of the email account or the
Credit Karma account and who had never worked at Ms. Williams' law office. Ms.
Desormeaux stated that she did not tell Ms. Williams or the law office that she
created the Credit Karma account. She concluded her affidavit by stating, "[ t]hat
the actions I took in creating this account and gathering information from it were in
my capacity as the daughter of [Mr.] Nevels not in my capacity as an employee of
Ms. Williams] or her law firm."
Ms. Williams submitted her affidavit wherein she stated that she was an
attorney, a family law specialist, and the principal and owner of the law office
Angela Cox Williams and Associates." Ms. Williams stated that Ms. Desormeaux
worked for her law firm as a part-time receptionist and legal assistant from February
of 2018 until May of 2021.
In her affidavit, Ms. Williams stated that she never asked or instructed Ms.
Desormeaux to open any Credit Karma account in Ms. Trombettas' name, nor did
she discuss the Credit Karma account with Ms. Desormeaux or have any knowledge
of it until after the filing of a disciplinary complaint by Ms. Trombettas and Ms.
Trombettas' counsel in March of 2022. According to Ms. Williams, she notified
Ms. Trombettas and Ms. Trombettas' counsel before the suit was filed that she had
no knowledge of or involvement with the opening of the Credit Karma account prior
to learning of the allegations through receipt of the disciplinary complaint filed by
E
them in March of 2022. She stated that she obtained and reviewed a St. Tammany
Parish Sheriffs Incident Report dated May 3, 2021, and attached to the affidavit,
which stated that the Credit Karma account was opened under an email address for
Ms. Nevels and that no charges were to be brought as no crime had occurred. She
concluded her affidavit by stating that documentation attached to the disciplinary
complaint indicated that the Credit Karma account was opened on the afternoon of
January 4, 2020, at which time she was on a family vacation at Universal Studios in
Orlando, Florida.
In opposition to the summary judgment motion, Ms. Trombettas attached the
following evidence: Ms. Williams' responses to her request for production of
documents, Ms. Williams' deposition, the divorce petition filed by Mr. Nevels
against Ms. Trombettas, Ms. Trombettas' objection to the hearing officer conference
report in the divorce litigation, Ms. Desormeaux' s deposition, a stipulated judgment
in the divorce proceedings, and her affidavit.
In the answers to the request for production, Ms. Williams objected on the
basis of attorney-client and/ or work -product privilege to Ms. Trombettas' request
for production of Ms. Desormeaux' s entire personnel file and copies of all emails,
postal mail, memoranda, text messages, and all other correspondence between Ms.
Desormeaux and Ms. Williams or Jesmin Finley involving any case as to which Ms.
Trombettas was a party. 10 She also objected to requests for records of vouchers and
expense reimbursements for Ms. Desormeaux, any termination and disciplinary
filings with the Louisiana Workforce Commission as to Ms. Desormeaux, or
unemployment compensation claims on the basis that they sought personal, private
information that was irrelevant to the proceedings. Ms. Williams also stated that she
also had no such documents.
1° Ms. Trombettas did not identify Ms. Finley in the request for production.
10
In Ms. Williams' deposition, she testified that Ms. Desormeaux worked for
her from 2017 or 2018 until May of 2021 as a receptionist. According to Ms.
Williams, Ms. Desormeaux' s duties were to answer the phone, file, run errands, and
make corrections that were not " too substantive." Ms. Williams testified that
financial issues were involved in Mr. Nevels' litigation against Ms. Trombettas. She
testified that there was a hearing in the matter on January 9, 2020, involving spousal
support, utility payments, and some other financial issues and that a stipulated
judgment was signed by the trial court on January 16, 2020. Ms. Trombettas'
counsel asked Ms. Williams if January 9, 2020, was five days after the date on which
Ms. Desormeaux opened up the Credit Karma account ( on January 4, 2020), to
which Ms. Williams replied affirmatively, adding " when I was in Universal in
Orlando with my kids" on vacation. She agreed that she propounded discovery to
Ms. Trombettas seeking any information about any accounts she would have opened
in her name. According to Ms. Williams, she found out that Ms. Desormeaux
opened a Credit Karma account when she received the disciplinary complaint against
her. She had no information on any Credit Karma account in her file, and she had
no discussions with Ms. Desormeaux about it. Ms. Williams stated that her insurer
was providing Ms. Desormeaux with a defense over Ms. Williams' objection based
on the fact that she " had nothing to do with this." When asked if Ms. Desormeaux
opened the Credit Karma account for the benefit of Ms. Nevels' divorce litigation,
Ms. Williams answered, " I have no idea what her motives were, because I knew
nothing about it."
Ms. Trombettas also attached to her opposition pleadings from the divorce
litigation, including the October 14, 2022 divorce petition that was filed by Mr.
Nevels against her; her October 14, 2022 objection to a hearing officer conference
report involving Ms. Trombettas' personal items in the marital home and Mr.
Nevels' interim monthly spousal support; and a January 16, 2022 stipulated
judgment concerning the former marital home and spousal support, among other
items.
Ms. Trombettas attached Ms. Desormeaux' s deposition to her opposition to
the summary judgment. In her deposition, Ms. Desormeaux testified that she worked
for Ms. Williams before 2019 until August of 2021. She stated that she was a
secretary and an assistant whose duties included answering the phone, scheduling
and filing, picking up lunch, and whatever was asked of her. Ms. Desormeaux
replied negatively when asked if she ever did any work from home. She stated that
her work hours were from 8: 30 until 3: 00 mostly every day. According to Ms.
Desormeaux, she had no involvement in Mr. Nevels' case other than answering the
phone and scheduling things. Ms. Desormeaux testified that Mr. Nevels " would talk
to me about what was going on outside of work when he would get frustrated." She
stated that she then referred him to Ms. Williams. She replied negatively when she
was asked several times if she talked to Ms. Williams about Mr. Nevels' case.
Ms. Desormeaux indicated that she did create a false Credit Karma account in
Ms. Trombettas' name using Ms. Trombettas' social security number. She testified
that she created the account to check for outstanding debt that could be attributed to
Mr. Nevels because he was concerned about it before the divorce was finalized. Ms.
Desormeaux stated that Mr. Nevels was concerned because a few years before, Ms.
Trombettas " had used his Social Security Number and created accounts in excess of
20, 000 in debt." After she created the Credit Karma account, she told Mr. Nevels
that she did not see anything that he should be aware of. Ms. Desormeaux replied
affirmatively when asked if Mr. Nevels asked her to open the Credit Karma account
in Ms. Trombettas' name. According to Ms. Desormeaux, she used an email address
that had her mother' s name in it for the Credit Karma account. She answered
12
affirmatively when asked if she opened the Credit Karma account from her home
using her computer.
Ms. Desormeaux indicated that she did not give Ms. Williams any information
about the Credit Karma account, stating that she did not " do it in conjunction for
anything with the case." She denied that Ms. Williams had given her and other office
workers directives " to go out and find stuff, however you could find it" or had asked
or instructed her to create the account. Ms. Desormeaux affirmed that Ms. Williams
did not have anything to do with her actions and that she " did this on [ her] own at
home at night." She answered affirmatively when asked if she was willing to pay
whatever damages were due " out of [her] own pocket," without reimbursement from
Ms. Williams. She answered negatively when asked if she spoke with Ms. Williams
about the Credit Karma account.
Ms. Trombettas also attached her affidavit to her opposition, wherein she
stated that she never consented to or authorized anyone to assume her identity and
create a Credit Karma account in her name with her social security number.
In reviewing the evidence submitted by Ms. Williams in support of her
summary judgment motion, we will consider Ms. Trombettas' first assignment of
error in which she argues that the trial court erred in failing to exclude Ms. Williams'
affidavit wherein she referred to and attached police reports. Ms. Trombettas filed
an objection to the consideration of and a motion to strike Ms. Williams' affidavit."
Ms. Trombettas contended that the police reports Ms. Williams referred to and
attached to her affidavit were inadmissible hearsay and therefore could not be
11 We note that the use of a motion to strike to object to summary judgment evidence is not
appropriate. Arceneaux v. Arceneaux, 2022- 0814 ( La. App. 1 Cir. 413123), 364 So. 3d 529, 536
n.9. Louisiana Code of Civil Procedure article 966( D)( 2) requires that any objection to a document
filed in support of or in opposition to a motion for summary judgment shall be raised in a timely
filed opposition or reply memorandum.
13
considered on the summary judgment motion. She further contended that Ms.
Williams' affidavit was not based on personal knowledge, as required by La. C. C. P.
arts. 966 and 967. At the hearing on the summary judgment motion, when asked
about Ms. Trombettas' objection, the trial court replied that it considered Ms.
Williams' affidavit.
The abuse of discretion standard is applicable to the trial court' s rulings on
objections to documents filed in support of or in opposition to a summary judgment
motion that are raised by a party in a timely filed opposition or reply memorandum
in accordance with La. C. C. P. art. 966( D)( 2). Lucas, 358 So. 3d at 88- 89.
Under La. C. C. P. art. 967( A), an affidavit offered in support of a motion for
summary judgment shall be based on personal knowledge, shall set forth facts that
would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Hearsay is defined as a statement,
other than one made by the declarant while testifying at the present trial or hearing,
offered in evidence to prove the truth of the matter asserted. La. C. E. art. 801( 0).
Hearsay is not admissible except as otherwise provided by the Code of Evidence or
other legislation. La. C. E. art. 802. This court has held that investigative police
12
reports that are not authenticated or sworn to in any way are inadmissible hearsay.
See Lowe v. Noble, L.L.C., 2016- 1110 ( La. App. 1 Cir, 10117117), 233 So. 3d 28,
37, rev' d on other grounds, 2017- 1948 ( La. 219118), 235 So. 3d 1095 ( per curiam);
Hickman ex rel. Hamlin v. Chevron U.S. A., Inc., 2007- 0080 ( La. App. 1 Cir.
12/ 21/ 07), 2007 WL 4465694 at * 4 n. l ( unpublished) ( citing La. C. E. art.
12 While 2023 La. Acts No. 317, § 1, has amended La. C. C. P. art. 966( A)(4)( a) to allow "certified
copies of public documents or public records" to be filed or referenced in support of or in
opposition to the summary judgment motion, comment ( a) of the 2023 revision comments states,
Objections may be raised in a timely filed opposition or reply memorandum if the content of any
document filed in accordance with Subparagraph (A)(4)( a), including any certified copies of public
records or public documents, would not be admissible at the trial on the merits."
14
803( 8)( b)( i)). Therefore, the trial court abused its discretion in considering those
reports and Ms. Williams' statement about them in her affidavit. However, the
remainder of Ms. Williams' affidavit was properly considered by the trial court. In
our de novo review of the motion for summary judgment, we will not consider the
police reports or Ms. Williams' statement about them."
In Ms. Trombettas' second assignment of error, she contends that the trial
court erred in granting the motion for summary judgment because Ms.
Desormeaux' s conduct was in the course and scope of her employment for Ms.
Williams. In granting the summary judgment motion, the trial court noted that Ms.
Desormeaux admitted that her actions were taken for purely personal consideration,
to help her father. The trial court concluded that Ms. Trombettas could not prove
any of the elements in the test for respondeat superior liability under La. C. C. art.
2320.
Ms. Trombettas contends that the evidence shows that Ms. Desormeaux was
helping Mr. Nevels, her boss' s client, with the financial aspects of his divorce
litigation by creating a Credit Karma account to check for the existence of any debt
belonging to Ms. Trombettas. However, in her affidavit, Ms. Desormeaux admitted
that she created the Credit Karma account away from Ms. Williams' office on her
own computer and after work hours; that she did so as a daughter helping her father;
and that Ms. Williams had no knowledge of or participation in her actions. Ms.
13 We note that Ms. Williams did not object to the evidence filed by Ms. Trombettas in opposition
to the motion for summary judgment. Ms. Trombettas submitted responses to the request for
production, but those items are not listed as proper summary judgment evidence under La. C. CR
art. 966( A)(4). Additionally, Ms. Trombettas attached pleadings from another suit without
authenticating them. While the list of items in La. C. C. P. art 966 that are admissible in a summary
judgment proceeding does include pleadings, those pleadings do not include pleadings from a
different suit in the same parish. See Mills v. Smith, 2019- 812 (La. App. 3 Cir. 4/ 8/ 20), 2020 WL
1702287, * 4 ( unpublished). However, without an objection, we must consider the evidence, but
it has no evidentiary value. See Lucas, 358 So. 3d at 92.
wiJ
Williams in her affidavit corroborated her lack of knowledge and participation in the
creation of the Credit Karma account. The evidence submitted by Ms. Trombettas
to oppose the summary judgment motion corroborated Ms. Williams' and Ms.
Desormeaux' s affidavits. Ms. Desormeaux testified in her deposition that she
created the Credit Karma account at her house on her personal computer during non -
work hours and that Ms. Williams did not know or participate in her actions." The
trial court correctly granted Ms. Williams' motion for summary judgment as there
was no evidence that she was vicariously liable for any conduct by Ms. Desormeaux
because none of the four factors for finding an employer liable for an employee' s
intentional tort existed. See Baumeister, 673 So. 2d at 996- 97.
MOTION TO STRIKE
Turning to the motion to strike, Ms. Williams seeks to strike portions of Ms.
Trombettas' reply brief. The reply brief contains a section wherein Ms. Trombettas
likened Ms. Williams to a demonic entity from the movie The Exorcist who forced
Ms. Desormeaux to lie about opening the Credit Karma account to protect Ms.
Williams. Uniform Rules— Courts of Appeal, Rule 2- 12. 2( B) states:
The language used in the brief shall be courteous, free from vile,
obscene, obnoxious, or offensive expressions, and free from insulting,
abusive, discourteous, or irrelevant matter or criticism of any person,
class ofpersons or association ofpersons, or any court, or judge or other
officer thereof, or of any institution. Any violation of this Subsection
shall subject the author, or authors, of the brief to punishment for
contempt of court, and to having such brief returned.
14 Ms. Trombettas relies on several cases to support her vicarious liability claim that are
distinguishable. See Felps v, Landmark Event Staffing Services, Inc,, 2021- 1370 ( La. App. 1
Cir. 8/ 31122), 349 So. 3d 78, 82- 85; Berthelot v. Indovina, 2021- 0517 (La. App. 1 Cir. 12122121),
340 So. 3d 119, 124- 26; and Garcia v. Lewis, 50,744 ( La. ,app. 2 Cir. 6/ 22/ 16), 197 So. 3d 738,
743- 44, writ denied, 2016- 1382 ( La. 11/ 7/ 16), 205 So. 3d 891. In those cases, the movers for
summary judgment provided evidence from which it could be concluded that the tortfeasor
employees' actions were employment- related, whereas in this case, the tortfeasor defendant in her
answer, deposition, and affidavit stated unequivocally that her actions were not employment-
related, which was consistent with Ms. Williams' testimony.
16
In opposition to Ms. Williams' motion to strike, Ms. Trombettas' counsel filed
a brief that included the language at issue along with a lengthy attachment. Ms.
Trombettas' counsel contended that " nothing was improper in [ Ms. Trombettas]
The Exorcist metaphor, which only colorfully emphasized the following points in
this case...." Counsel attached to his response two articles discussing references to
movies in judicial opinions: Douglas E. Abrams, References to Movies in Judicial
Opinions and Written Advocacy, Part 1, 75 J. Mo. B. 244 ( 2019), and Douglas E.
Abrams, References to Movies in Judicial Opinions and Written Advocacy, Part 2,
75 J. Mo. B. 297 ( 2019).
This court is concerned that Ms. Trombettas' counsel, Richard Ducote, fails
to realize how unprofessional and inappropriate comparing a defendant to Satan and
using The Exorcist as a metaphor is, and instead, continues to reassert the reference
along with a lengthy and condescending explanation of what a metaphor is. Notably,
The Exorcist is not included in the extensive list of movies referred to in the articles
on judicial opinions that Mr. Ducote submitted. Moreover, Mr. Ducote previously
has used inappropriate language in an appellate brief, which this court struck on a
motion to strike, and condemned the unprofessional conduct evidenced in that brief.
See Stroscher v. Stroscher, 2001- 2769 ( La. App. 1 Cir. 2/ 14/ 03), 845 So. 2d 518,
527- 28.
Based on our review of the motion and Ms. Trombettas' reply brief, we grant
the motion to strike Section A of Ms. Trombettas' reply brief, which is entitled " Ms.
Desormeaux' s ' admission."' Ms. Trombettas' allegations involving the occult are
potentially damaging to Ms. Williams' reputation and are inappropriate, offensive,
17
and insulting. We exercise our discretion and will not hold counsel in contempt.'
See In re Interdiction of DeMarco, 2009- 1791 ( La. App. 1 Cir. 417110), 38 So. 3d
417, 432. In the motion to strike, Ms. Williams requested an award of attorney' s
fees and costs. While we are granting the motion to strike, we are unable to award
the attorney' s fees incurred in bringing the motion. 16 See Coastal Industries, LLC
v. Arkel Constructors, LLC, 2021- 0906 ( La. App. I Cir. 9/ 1/ 22), 350 So. 3d 912,
924, writ denied, 2022- 01489 ( La. 11/ 22122), 350 So. 3d 500 ("[ A] ttorney' s fees are
not recoverable unless authorized by statute or contract.") We will award Ms.
Williams the costs incurred in bringing the motion to strike.
CONCLUSION
For the foregoing reasons, we affirm the judgment of November 15, 2022,
granting Angela Cox Williams' motion for summary judgment and dismissing the
claims brought against her by Anastassia Trombettas with prejudice. Angela Cox
Williams' motion to strike is granted as to Section A of Ms. Trombettas' reply brief,
which is entitled " Ms. Desormeaux' s `` admission."' Costs of this appeal and those
15 Louisiana Code of Civil Procedure article 222 states in pertinent part:
A direct contempt of court is one committed in the immediate view and presence
of the court and of which it has personal knowledge, or a contumacious failure to
comply with a subpoena or summons, proof of service of which appears of record.
Any of the following acts constitutes a direct contempt of court:
3) Use of insulting, abusive, or discourteous language by an attorney or other
person in open court, or in a pleading, brief, or other document filed with the court
in irrelevant criticism of another attorney or of a judge or officer of the court; ...
Louisiana Revised Statutes 13: 4611( 1)( g) provides in pertinent part that " Except as otherwise
provided for by law: ( 1)[ T] he courts of appeal ... may punish a person adjudged guilty of contempt
of court therein, as follows:... (
g) The court may award attorney fees to the prevailing party in a
contempt of court proceeding provided for in this Section." Because this court is not holding Ms.
Trombettas' counsel in contempt, we will not award attorney' s fees incurred in bringing the motion
to strike.
I:
incurred in Angela Cox Williams' motion to strike are assessed to Anastassia
Trombettas.
MOTION TO STRIKE GRANTED; JUDGMENT AFFIRMED.
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