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Stewart v. Natchitoches Beverage3/3/1999
STEWART v. NATCHITOCHES, 98-1459 (La.App. 3 Cir. 3/3/99); ___ So.2d ___
The plaintiff, Terry Stewart, appeals the trial court's granting of summary judgment in favor of the defendant, Natchitoches Beverage, Inc., and dismissing his claim with prejudice. We affirm for the following reasons.
FACTS
On August 17, 1996, Stewart suffered a heart attack which required hospitalization and treatment. He recovered and was released to return to work without restrictions by his cardiologist on October 31, 1996. When he reported to work, Natchitoches Beverage terminated his employment. Stewart filed the instant suit on October 28, 1997, seeking reinstatement, back pay, and attorney's fees as a result of Natchitoches Beverage's discriminatory act in refusing to employ him. He alleged that its refusal was due to a fear that he would suffer another heart attack while performing his duties as a salesman. Natchitoches Beverage answered denying Stewart's claim, and filed a motion for summary judgment alleging that it did not fit the definition of an "employer" as provided in the Civil Rights Act for Handicapped Persons. La.R.S. 46:2253(7).
At the hearing on the motion for summary judgment, Natchitoches Beverage presented two affidavits attached to its motion which were filed into the record. Mark Thomas, a certified public accountant, stated that he was the accountant for Natchitoches Beverage, and that it never employed more than twelve employees. Natchitoches Beverage's employee log was attached showing that from October 31, 1996 that it employed no more than twelve employees. Steve Wiggins, Natchitoches Beverage's president, stated that it never employed fifteen employees while Stewart was employed or since his termination. He further stated that Natchitoches Beverage had never been a contractor or subcontractor or furnished material or performed work for the state, local, or governmental entities or any political entity of the state.
Stewart argued Natchitoches Beverage qualified as an "employer" under the Act because it admitted in a response to an interrogatory that it sold beer to the United States Army at its recreational site at Toledo Bend. The affidavit, attached to his memorandum, stated that, in addition to selling beer to the United States Army, Natchitoches Beverage sold beer and provided promotional materials to the Northwestern State University Student Union. He argued that this was the furnishing of "material" to state and federal governmental entities. The trial court disagreed, holding that Natchitoches Beverage supplied merchandise to its vendees, not materials, and that it did not qualify as an employer as contemplated by La.R.S. 46:2253(7). This appeal followed.
ISSUES
Stewart raises three assignments of error on appeal:
(1) The trial court erred in granting summary judgment because material issues of fact remained as to whether Natchitoches Beverage qualified as an "employer" under La.R.S. 46:2253(7)
(2) The trial court erred by granting summary judgment when it ruled that La.R.S. 46:2253(7) did not apply to the sale of beer to the State of Louisiana through Northwestern State University and the United States Government through the Army.
(3) The trial court erred by granting summary judgment when it failed to retroactively apply Acts 1997, No. 1409, ยง 4, which redefined the definition of "employer."
LAW
Following the 1997 amendment of the summary judgment law, summary judgments are now favored, and shall be used to "secure the just, speedy, and inexpensive determination" of all actions, except those excluded by La.Code Civ.P. art. 969. La.Code C
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