Elmore Tregre, II Versus Bis Services, LLC ( 2023 )

ELMORE TREGRE, II NO. 23-C-124
VERSUS FIFTH CIRCUIT
BIS SERVICES, LLC, ET AL. COURT OF APPEAL
STATE OF LOUISIANA
November 04, 2023
Linda Wiseman
First Deputy Clerk
ON APPLICATION FOR REHEARING
Panel composed of Susan M. Chehardy,
Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
DENIED WITH REASONS
MEJ
FHW
RAC
CONCURS WITH REASONS
SMC
CONCURS IN THE DENIAL OF THE
APPLICATION FOR REHEARING FOR THE
REASONS ASSIGNED BY CHEHARDY, C.J.
JGG
JOHNSON, J.
Relator seeks reconsideration of this Court’s denial of its writ application
number 23-C-124.
Uniform Rules-Courts of Appeal, Rule (URCA) 2-18.7 provides as follows:
2-18.7. When Rehearing Will Be Considered
An application for rehearing will be considered in cases where
the court has:
(A) Granted a writ application on the merits;
(B) Dismissed an appeal; or
(C) Ruled on the merits of an appeal.
URCA Rule 4-9 provides that “Rules 2-18.1 through 2-18.7 apply to
requests for rehearings related to writ applications.” Because Relator’s writ
application was denied, Relator is not entitled to a rehearing.
Further, the majority of the five-judge panel that heard the matter on October
16, 2023 finds Relator’s argument that the opinion in this case cannot be
reconciled with the Court’s opinion in Gerald P. Snyder v. Donovan D. Bourgeios,
22-598 (La. App. 5 Cir. 10/4/23), --- So.3d ---- (2023 WL 6453734), or the
Supreme Court’s decision in Farrell v. Circle K Stores, Inc., 22-00849 (La.
3/17/23), 359 So.3d 467, is without merit. The instant case is factually
distinguishable from Snyder and Farrell.1 The allegedly unreasonably hazardous
condition was present at the end of the entrance/exit of the AWAR (All Weather
1
See Farrell, 359 So.3d at 474-475:
Thus, it is conceivable that an allegedly hazardous condition, as alleged
in this case, located at the entrance to the store, may ultimately be
determined to be unreasonably dangerous; whereas, the same condition,
located in the corner of a parking lot, may not be unreasonably
dangerous because the likelihood and magnitude of harm is vastly
different. It is also relevant that the pool of water was not located in a
customarily traversed area, such as the entrance to the store, where
patrons would likely encounter it or be forced to encounter it to go into
the location.
23-C-124 1
Access Road), the AWAR was required to remain open for use by pedestrians and
cyclists throughout the levee armoring project, and contract terms required BIS to
keep the AWAR free and clear of debris.
Based on the foregoing, Relator’s request for rehearing is denied.
23-C-124 2
ELMORE TREGRE, II NO. 23-C-124
VERSUS FIFTH CIRCUIT
BIS SERVICES, LLC, ET AL. COURT OF APPEAL
STATE OF LOUISIANA
CHEHARDY, C.J., CONCURS WITH REASONS
I concur with the panel’s decision to deny rehearing, because a request for
rehearing from the denial of a writ application is not permitted under the Uniform
Rules – Courts of Appeal, Rules 4-9 and 2-18.7. Were it not for this procedural
prohibition, I would grant rehearing for the reasons discussed in my dissent.
23-C-124 1
ELMORE TREGRE, II NO. 23-C-124
VERSUS FIFTH CIRCUIT
BIS SERVICES, LLC, ET AL. COURT OF APPEAL
STATE OF LOUISIANA
GRAVOIS, J., CONCURS IN THE DENIAL OF THE
APPLICATION FOR REHEARING FOR THE REASONS
ASSIGNED BY CHEHARDY, C.J.
23-C-124 2
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 11/04/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:
23-C-124
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Scott U. Schlegel (District Judge)
Hon. Joseph A. Marino, III (District Judge)
David P. Salley (Respondent) Michael W. Rutledge (Respondent) Stephen C. Resor (Respondent)
Kirk N. Aurandt (Relator) Michael W. McMahon (Relator)
Alex P. Tilling (Respondent) James A. Prather (Respondent)
Trevor M. Cutaiar (Respondent)
MAILED
James G. Albertine, III (Respondent) John Zazulak (Respondent) Joshua Dierker (Respondent)
Robert L. Keller, II (Respondent) Attorney at Law Attorney at Law
Attorney at Law 701 Poydras Street Three Sanctuary Boulevard
365 Canal Street Suite 600 Third Floor
Suite 1710 New Orleans, LA 70139 Mandeville, LA 70471
New Orleans, LA 70130