Ronald Johnson Versus River Birch, LLC; The Administrators of the Tulane Educational Fund; And, Jefferson Parish Government ( 2023 )

RONALD JOHNSON NO. 23-CA-21
VERSUS FIFTH CIRCUIT
RIVER BIRCH, LLC; THE COURT OF APPEAL
ADMINISTRATORS OF THE TULANE
EDUCATIONAL FUND; AND, JEFFERSON STATE OF LOUISIANA
PARISH GOVERNMENT
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 810-979, DIVISION "F"
HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING
December 20, 2023
JOHN J. MOLAISON, JR.
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and John J. Molaison, Jr.
AFFIRMED IN PART; REVERSED IN PART; REMANDED
JJM
FHW
JGG
COUNSEL FOR PLAINTIFF/APPELLANT,
RONALD JOHNSON
Catherine Hilton
Ron A. Austin
COUNSEL FOR DEFENDANT/APPELLEE,
RIVER BIRCH, LLC
Michael J. Madere
Philip E. Reso
Scott S. McCormick
COUNSEL FOR DEFENDANT/APPELLEE,
PARISH OF JEFFERSON
Deborah A. Villio
Michael L. Fantaci
James C. Raff
MOLAISON, J.
The plaintiff/appellant, Ronald Johnson, seeks review of the summary
judgment granted in favor of the Parish of Jefferson (“the Parish”) and a second
summary judgment granted in favor of River Birch, LLC (“River Birch”). For the
reasons that follow, we affirm in part, reverse in part, and remand for further
proceedings.
FACTS AND PROCEDURAL HISTORY
Mr. Johnson was injured when the truck he was operating, which was
carrying a full dumpster, rolled over onto its side as he was attempting to turn off
U.S. Highway 90 onto South Kenner Road. South Kenner Road leads to a landfill
owned by River Birch. He filed suit against the Parish and River Birch alleging
that the rollover was caused by potholes that are located in the area where the
Parish and River Birch have servitudes. The appellant additionally alleged that
River Birch employees routinely performed maintenance on these potholes. Both
the Parish and River Birch denied that the area where the accident occurred was on
their respective servitudes. The Parish retained an expert land surveyor who
plotted the location of the potholes on a survey and found they were located within
the U.S. Highway 90 right-of-way. The Parish and River Birch moved for
summary judgment on that basis. River Birch admitted performing some
maintenance in the area but denied that it had garde1 of this area. The trial court
held a hearing on both motions for summary judgment on November 7, 2022. On
November 29, 2022, the trial court issued a judgment granting summary judgment
in favor of the Parish, and on November 30, 2022, the trial court issued a judgment
granting summary judgment in favor of River Birch. This timely appeal followed.
1
Garde is the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it,
to prevent it from causing damage to others. Ambrose v. City of New Iberia, 08-1197 (La. App. 3 Cir.
4/1/09), 11 So.3d 34, 38, writ not considered, 09-1843 (La. 11/6/09), 21 So.3d 314.
23-CA-21 1
LAW AND DISCUSSION
In the petition for damages filed on October 7, 2020,2 the appellant alleged
that on October 7, 2019, he was employed by Waste Connections, a company that
serviced waste dumpsters. He was driving a truck carrying a loaded dumpster to
the River Birch landfill to empty the dumpster. This landfill is accessed by turning
off U.S. Highway 90 onto South Kenner Road, a road that runs into the landfill.
He alleges that the junction of U.S. Highway 90 and South Kenner Road contained
dangerous potholes in the path of travel for turning trucks. When he turned onto
South Kenner Road, a tire on his truck struck the potholes and caused the truck to
roll over onto its driver’s side, injuring him. He alleged that the Parish and River
Birch were both custodians of the entrance to the landfill, had notice that the
dangerous potholes were in the path of travel, and posed a hazard to turning trucks,
creating an undue risk of harm.
After an opportunity for adequate discovery, a motion for 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). If the mover will not
bear the burden of proof at trial on the issue that is before the court on the motion
for summary judgment, the mover’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 the absence of factual support for one or more
elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art.
966(D)(1). The burden then shifts to the adverse party to produce factual support
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. Id. Factual inferences
2
Other defendants have been named in this lawsuit but only the Parish and River Birch are the subject of
this appeal.
23-CA-21 2
reasonably drawn from the evidence must be construed in favor of the party
opposing a motion for summary judgment, and all doubt must be resolved in the
opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050
(per curiam). In determining whether summary judgment is appropriate, appellate
courts review evidence de novo under the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate. Samaha v. Rau, 07-
1726 (La. 2/26/08), 977 So.2d 880.
A decision as to the propriety of a grant of a motion for summary judgment
must be made with reference to the substantive law applicable to the case. Bach v.
Bd. of River Port Pilot Comm’rs, 15-765 (La. App. 5 Cir. 5/12/16), 193 So.3d 355,
362.
La. Civil Code art. 2317 provides:
We are responsible, not only for the damage occasioned by our own
act, but for that which is caused by the act of persons for whom we are
answerable, or of the things which we have in our custody. This,
however, is to be understood with the following modifications.
La. Civil Code art. 2317.1 provides:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquitur in an appropriate case.
Thus, in order for the Parish and River Birch to be liable to the appellant for
injuries alleged to have been caused by defects in the roadway, the appellant must
be able to prove that the Parish and River Birch had ownership or custody of the
area where the potholes that are alleged to have caused the accident are located.
Jefferson Parish’s Motion for Summary Judgment
In the Motion for Summary Judgment filed on June 6, 2022, the Parish
stated that in 1965, it acquired a 60-foot-wide servitude for a portion of land to be
23-CA-21 3
used to construct the southernmost portion of South Kenner Road. The Parish
contends that this servitude begins at the “north right-of-way line of U.S. Highway
90.” The Parish stated that the photograph of the accident site, that was received in
discovery responses from the appellant, in which the potholes alleged to have
caused the accident were circled by the appellant, indicates that the potholes were
outside of the Parish’s servitude. In support of its argument, the Parish attached a
survey and affidavit by its expert surveyor, Gary Lambert, who attested that the
potholes which the appellant alleged to have caused his accident are not located
within the Parish’s servitude and instead are located within the Highway 90 right-
of-way. The Parish asserted that it does not have ownership or custody of the area
where the potholes that the appellant alleged to have caused his accident are
located. The Parish concluded that it was entitled to summary judgment because
the appellant could not establish that the part of the roadway alleged to be
defective was in the custody or control of the Parish.
On July 12, 2022, the appellant filed an opposition to the Parish’s motion for
summary judgment, arguing that the photograph on which the appellant identified
the potholes that caused the accident, does not show the distance of the potholes
from U.S. Highway 90. The appellant took issue with the findings of the
defendants’ expert, Mr. Lambert, claiming that his findings were not based on
personal knowledge and were not accurate. The appellant requested a continuance
of the hearing on the motions for summary judgment, arguing that it was necessary
to take the deposition of Mr. Lambert and conduct other written discovery. The
appellant also objected to the admissibility of Mr. Lambert’s affidavit.
The trial court granted the appellant’s motion to continue the hearing on the
motion for summary judgment. Following the deposition of Mr. Lambert, the
Parish filed a “Re-urged Motion for Summary Judgment.” In this motion, which
was filed on October 4, 2022, the Parish argued that Mr. Lambert’s deposition
23-CA-21 4
testimony confirmed the attestations in the affidavit and did not create any issues
of material fact. Mr. Lambert testified that he is a licensed professional land
surveyor and employed by BFM Corporation (“BFM”). BFM was hired by the law
firm representing the parish to “provide a right-of-way survey and locate the
improvements within a specified area.” He named the employees of BFM who
comprised the “field crew” who assisted him in preparing the survey, and
explained their title and role in preparing the survey. The survey was prepared
based on the photograph produced by Mr. Johnson that depicted the accident site
and identified the potholes that allegedly caused the accident. The public records
pertaining to the accident site were reviewed and the “property monumentation”3
was located, as were other physical features shown in the photograph, and
measurements were taken of the potholes identified by the appellant to create the
survey. Mr. Lambert testified that he was able to calculate the exact position of the
potholes identified by the appellant down to a hundredth of a foot using Global
Positioning Satellites (“GPS”). Mr. Lambert testified that the potholes are located
within the U.S. Highway 90 right-of-way. The Parish argued that the appellant had
not come forth with any evidence to establish that the Parish had ownership,
custody, or garde of the area where the potholes are located and concluded that
there are no genuine issues of triable fact and the appellant’s suit against it should
be dismissed. The Parish attached four exhibits to its motion: (1) the appellant’s
petition for damages, (2) the photograph that was produced in response to the
Parish’s request for admissions depicting the accident site on which the potholes
alleged to have caused the accident were identified by the appellant, (3) the
affidavit of Gary Lambert, and (4) the deposition of Gary Lambert.
3
Mr. Lambert explained that “when surveyors conduct land surveys, they will monument the corners of
tracts…that leaves a permanent marker for any other surveyor…to have a starting point.” He further
explained that the monumentation are usually “a five-eighths inch iron rebar…about 18 inches long…that
stay[s] up for 50, 75, 100 years.” He stated that all of the corners of a tract should be marked.
23-CA-21 5
On October 17, 2022, the appellant filed a supplemental opposition to the
motion for summary judgment filed by the Parish, arguing that Mr. Lambert’s
affidavit was discredited by his own deposition. The appellant argues that in the
affidavit, Mr. Lambert attested that the potholes identified by the appellant “are not
situated on any property owned by or within the custody of control” of the Parish
or River Birch; however, inhis deposition, Mr. Lambert testified that as a land
surveyor he was not “legally allowed to say who owns what.” The appellant
further argued that the “right of public use (or servitude) in favor of the Parish,”
gives the Parish the right and use of the property. The appellant again objected to
Mr. Lambert’s affidavit, asserting that Mr. Lambert did not have sufficient
knowledge to author the affidavit.
On November 1, 2022, the Parish filed a reply memorandum in support of its
re-urged motion for summary judgment, again asserting that the potholes that the
appellant alleges to have caused his accident are located within the U. S. Highway
90 right-of-way, and the appellant has not come forth with any evidence to show
that the Parish had custody or control over that portion of the U.S. Highway 90
right-of-way. The Parish argues that summary judgment cannot be defeated by
arguments of counsel. The Parish contends there is no basis for the appellant’s
objections to the affidavit of Mr. Lambert. During his deposition, Mr. Lambert
was able to identify the potholes at issue by lining up various features in the
appellant’s photograph with actual features in the field such as shrub beds, a
pipeline marker, and concrete blocks. The Parish contends that Mr. Lambert
demonstrated in his deposition that the methodology used to prepare his survey
employed sound scientific and surveying principles, and that the appellant has not
come forth with any evidence to show that the potholes were located in an area that
the Parish had custody or control. The Parish contends that there are no genuine
issues of triable fact and it is entitled to summary judgment.
23-CA-21 6
At the hearing on the motion for summary judgment, the Parish argued that
the survey indicates that the potholes that were identified by the appellant as
causing the accident are located inside of the U.S. Highway 90 right-of-way, and
not within the area of the Parish’s servitude. The Parish explained that the
photograph of the accident site depicts concrete blocks and shrub beds which
assisted the surveyor to find the exact potholes at issue. The Parish pointed out
that the appellant had not offered any evidence to contradict the survey. The
Parish argued that appellant’s arguments contesting the survey are without merit,
as Mr. Lambert testified that he supervised the survey team and personally made
findings based on the data gathered by the team. With regard to the appellant’s
argument that Mr. Lambert was not qualified to attest as to who had custody or
control of the area in which the potholes are located, the Parish argued that those
portions of Mr. Lambert’s affidavit could be “given whatever weight” the court
wishes and acknowledged that this was not dispositive of the issue of whether the
Parish had custody or control of the area where the potholes are located. The
Parish introduced the four exhibits attached to its motion for summary judgment,
i.e., the petition for damages, the photograph of the accident site produced by the
appellant in response to the Parish’s request for admissions, the deposition of Mr.
Lambert, and the affidavit of Mr. Lambert.
The appellant objected to Mr. Lambert’s affidavit, arguing that Mr. Lambert
testified that surveyors are “legally not allowed to say who owns what, [yet] his
affidavit numbers five and six do just that.” The appellant went on to argue that
Mr. Lambert admitted to relying on “numbers and coordinates and other data from
others, not just people in his firm, but ancient surveyors and title abstractors.”
When questioned by the trial judge as to what evidence she had that the area where
the potholes are located is owned by the Parish, the appellant’s attorney responded
that this “in the right-of-way based on Mr. Lambert’s deposition.” When
23-CA-21 7
questioned further by the trial judge, the appellant’s attorney stated that she
disputes the accuracy of the survey. She then referred to a copy of the survey that
contained lines in different colors to identify the highway 90 right-of-way and the
location of the potholes that was introduced as an exhibit and attached to Mr.
Lambert’s deposition. The appellant went on to argue that the survey was not
based on Mr. Lambert’s personal knowledge. Alternatively, the appellant argued
that if the trial judge overruled the objection to the survey, the trial judge should
not consider clauses five and six of the affidavit stating that the potholes are not
situated on any property owned by or under the custody or control of the Parish or
River Birch.
The Parish responded that Mr. Lambert testified that his survey, which was
attached as an exhibit to his deposition, was based on his personal knowledge. The
Parish also pointed out that Mr. Lambert testified as to the steps taken in preparing
the survey. The Parish again argued that the appellant had not come forth with any
evidence to show that the potholes identified by the appellant were not located
within the U.S. Highway 90 right-of-way.
After the conclusion of the arguments, the trial judge granted the Parish’s
motion for summary judgment. The trial judge stated that even if he were to
exclude paragraphs five and six of the affidavit, the Parish would still be entitled to
summary judgment. The trial judge explained that there was sufficient evidence
presented to show that the Parish did not own the area where the accident occurred
as represented by the appellant.
On appeal, the appellant argues that the trial court erred in granting
summary judgment in favor of the Parish because the appellant “produced factual
evidence sufficient to establish a genuine question of material fact as to where the
accident occurred and who had garde.” The appellant contends that as set forth in
Mr. Lambert’s deposition, the Parish “obtained a right of way” to South Kenner
23-CA-21 8
Road in 1965. The appellant argues that given the facts of this case, the right of
way creates a genuine question of material fact as to whether the Parish had a duty
to maintain the roadway. The appellant further argues that the trial court erred in
admitting Mr. Lambert’s affidavit into evidence because it was impeached by his
deposition testimony.
In his affidavit,4 Mr. Lambert attests that he is a Registered Professional
Land Surveyor and the Survey Project Manager for BFM Corporation and he has
personal knowledge of the locations as reflected in the attached survey dated
October 11, 2021. He certified that the right-of-way identification of the subject
accident site was made by him and conforms to the State requirements and
standards for boundary surveys and is true and correct to the best of his knowledge.
He has reviewed the petition filed by the appellant and the photograph on which
the appellant identified the potholes that allegedly caused the accident, as well as
the dedication of the servitude to the Parish in the December 16, 1965 act. Mr.
Lambert attested that the potholes identified by the appellant are located within the
boundaries of the U.S. Highway 90 right-of-way. In his lengthy and detailed
deposition, Mr. Lambert painstakingly testified as to the steps taken to prepare the
survey. He testified that he is a licensed professional land surveyor and employed
by BFM, which was hired by the law firm representing the parish to “provide a
right-of-way survey and locate the improvements within a specified area.” He
named the others employed by BFM comprising the “field crew” who assisted him
in preparing the survey, and explained their title and role in preparing the survey
based on the photograph produced by Mr. Johnson that depicted the accident site
and identified the potholes that allegedly caused the accident. He testified that the
4
Mr. Lambert testified that “as a land surveyor we are not legally allowed to say who owns what.” For
this reason, attestations five and six of the affidavit, stating that the potholes are not “situated on any
property owned by, or within the custody or controlled of [sic] River Birch or the Parish,” were not
considered in our review.
23-CA-21 9
public records pertaining to the accident site were reviewed, the property
monumentation was located, as were other physical features shown in the
photograph, and measurements were taken of the potholes identified by the
appellant to create the survey. Mr. Lambert testified that he was able to calculate
the exact position of the potholes identified by the appellant down to a hundredth
of a foot using Global Positioning Satellites (“GPS”). Mr. Lambert concluded that
based on his personal and professional knowledge, the potholes are located within
the U.S. Highway 90 right-of-way. Our review of Mr. Lambert’s deposition
indicates that it substantiates and supports his affidavit, contrary to the appellant’s
assertion that the deposition impeaches the affidavit. Hence, we find no error in
the trial court’s admission of Mr. Lambert’s affidavit.
This Court has consistently held that exhibits, filed as unsworn and
unauthenticated attachments to an opposition to a motion for summary judgment,
are not permissible supporting documents in opposition to a motion for summary
judgment. Dye v. LLOG Expl. Co., LLC, 20-441 (La. App. 5 Cir. 11/3/21), 330
So.3d 1222, 1225. However, if those exhibits are attached to and authenticated by
a deposition offered in support or opposition to the motion for summary judgment,
they constitute evidence which may be considered under La. C.C.P. art. 966A(4)
and D(2). Id. Accordingly, the survey, which was referred to extensively at the
hearing on the motion for summary judgment was also properly admitted into
evidence.
In ruling on a summary judgment motion, the court must determine whether
the supporting documents presented by the mover are sufficient to resolve all
material fact issues. Savannah v. Smithy’s Supply/Big 4 Trucking, 18-1033 (La.
App. 1 Cir. 5/31/19), 280 So.3d 615, 619, writ denied, 19-01286 (La. 10/21/19),
280 So.3d 1168.
23-CA-21 10
In the instant case, the Parish presented the photograph of the accident site
on which the appellant identified the potholes he alleges to have caused the
accident, along with the affidavit, deposition, and survey of its expert professional
surveyor. The documents submitted by the Parish clearly show that the potholes
which the appellant alleges to have caused his accident are located within the U.S.
Highway 90 right-of-way. The burden then shifted to the appellant to come forth
with sufficient proof that he will be able to carry his evidentiary burden at trial, i.e.,
to show that the Parish had custody and/or control of the area where the potholes
alleged to have caused the accident are located. Despite repeated questioning by
the trial judge at the hearing on the motion for summary judgment, the appellant
was unable to point to any evidence to show that the Parish had custody and/or
control of the area where the potholes alleged to have caused the accident are
located. Accordingly, because the appellant was unable to produce any evidence
that he will be able to carry his evidentiary burden at trial, there is no material issue
of fact and the Parish is entitled to summary judgment as a matter of law.
River Birch’s Motion for Summary Judgment
River Birch filed a motion for summary judgment on June 6, 2022, arguing
that the claims against it should be dismissed because it did not own nor have
custody of the property where the accident occurred. River Birch relied on Mr.
Lambert’s survey and affidavit to support its argument. No exhibits were attached
to River Birch’s motion.
On July 5, 2022, the appellant filed a supplemental petition alleging that
River Birch “owns, maintains, and manages the dump [landfill] and therefore had
actual and/or constructive possession, custody, and control of the private roadway”
used for ingress and egress of the landfill.
The appellant filed an opposition to the motion arguing, as he did in his
opposition to the Parish’s motion, that the photograph on which the appellant
23-CA-21 11
identified the potholes that caused the accident, does not show the distance of the
potholes from U.S. Highway 90. The appellant again took issue with the findings
of the defendants’ expert, Mr. Lambert, claiming that his findings were not based
on personal knowledge and were not accurate. The appellant also explained that
he had recently filed a supplemental petition making additional allegations of
liability against River Birch to include allegations of garde. The appellant’s
request to continue the hearing on the motion for summary judgment was granted
and the appellant took the deposition of Mr. Lambert.
On October 17, 2022, the appellant filed a supplemental opposition to the
motion for summary judgment filed by River Birch, arguing that Mr. Lambert’s
affidavit was not based on personal knowledge and was impeached by his
deposition testimony. In support of his argument that River Birch had garde over
the area where the potholes alleged to have caused the accident are located, the
appellant attached his own affidavit, attesting that the only way to access the River
Birch landfill is via South Kenner Avenue. He attested that he has used this road
on many occasions and observed River Birch employees repairing holes on the
roadway. He argued that this indicates that River Birch maintained garde over
South Kenner Avenue. In addition, the appellant attached the affidavits of Darren
Robinson, who attested that he has regularly delivered waste to River Birch and
observed River Birch employees “filling” potholes “in the turn off area from
Highway 90 onto South Kenner Road.” An affidavit by Jerry F. Curtis, Jr., who
attested that he regularly delivers dumps to River Birch landfill, and that he has
observed River Birch employees filling potholes in an area “within approximately
10 to 20 feet from the turn off from Hwy. 90 as well as further down South Kenner
Road, closer to the River Birch Landfill entrance,” was also attached to the
opposition. In further support of his argument, the appellant attached the response
to requests for admission from River Birch admitting that on certain occasions,
23-CA-21 12
including during 2018 and 2019, River Birch employees filled potholes on the
main roadway of South Kenner Road. The appellant also attached excerpts of the
1442 deposition of River Birch corporate representative, Andrew Bordelon, who
testified that River Birch employees performed maintenance work in the nature of
filling holes on South Kenner Road in 2018 and 2019. The appellant argued that
Mr. Bordelon’s affidavits and deposition of established that River Birch undertook
a duty to maintain the roadway. He argued that because Mr. Bordelon could not
identify the location of the potholes filled by River Birch, there is a material issue
of fact as to the location of the potholes patched by River Birch, and that River
Birch was not entitled to summary judgment.
On October 26, 2022, River Birch filed a supplemental reply memorandum
in support of its motion for summary judgment, arguing that Mr. Lambert’s survey
is uncontroverted evidence of the position of the potholes on the property of the
Highway 90 right-of-way, and therefore, there is no basis to impose garde upon
River Birch for this property. River Birch asserted that the appellant has no
evidence to establish that it has a duty to maintain or otherwise ensure the safety of
the roads, medians, or shoulder of U.S. Highway 90. River Birch contends that the
appellant’s reliance on its decision to sporadically fill potholes on the main area of
South Kenner Road does not give rise to garde. River Birch did not attach any
exhibits to its supplemental reply memo.
At the hearing on its motion for summary judgment, River Birch argued that
it repaired some potholes “in the middle of the road” to protect the vehicles of its
employees who drove on the road. River Birch argued that if there were “dual
garde” over the area of the potholes identified by the appellant, there has to be
something in the public record to show that the party with the dual garde has
“some sort of responsibility or ability to be able to modify, or to destroy, or to
23-CA-21 13
recreate, or to redirect the road at issue.” Because there is no evidence that River
Birch had such authority, it asserts that it did not have dual garde.
In response, the appellant argued that River Birch kept no records of which
potholes were repaired or when they were repaired. The appellant pointed to the
affidavits of the appellant and two other truck drivers who attested that they
observed River Birch employees repairing the potholes on numerous occasions.
The appellant admitted that the potholes repaired by River Birch were located on
South Kenner Road and not on the Highway 90 right-of-way.
During the argument, counsel for River Birch stated that he would like to
“offer, file and introduce River Birch’s Motion for Summary judgment, the
Memorandum in support, as well as all exhibits” that have been filed on “behalf of
all the parties.” The appellant pointed out, as he had argued in his opposition, that
River Birch had not attached any exhibits to its motion for summary judgment.
The trial judge then asked counsel for River Birch what exhibits he had in support
of the motion, to which counsel responded “we adopted and referenced all the
exhibits filed by Jefferson Parish.” The appellant’s counsel objected to
incorporating exhibits to another motion into River Birch’s motion, again stating
that in his opposition, the appellant pointed out that River Birch did not attach any
exhibits to its motion. Counsel for River Birch then stated that this was done for
“judicial economy and efficiency to try to not pollute the record with too many
exhibits.” The trial court then asked counsel for River Birch which exhibits he
wanted to adopt, to which counsel replied, the Parish’s exhibits one to four. The
trial court accepted the exhibits.
At the time of the hearing on the motions for summary judgment at issue in
this appeal, La. C.C.P. art. 966D(2) provided that in ruling on a motion for
summary judgment “the court may consider only those documents filed in support
of or in opposition to the motion for summary judgment.” However, effective
23-CA-21 14
August 1, 2023, the Louisiana legislative amendment to La. C.C.P. art. 966D(2),
which provides: “the court shall consider only those documents filed or
referenced in support of or in opposition to the motion for summary judgment,”
went into effect.
The 2023 comments to La. C.C.P. art. 966 states that the amendment to
Subparagraph (D)(2) contains “only slight changes in phraseology. The
amendment is not intended to make substantive changes to the law.” La. C.C. art.
6 provides that “[i]n the absence of contrary legislative expression, substantive
laws apply prospectively only. Procedural and interpretative laws apply both
prospectively and retroactively unless there is a legislative expression to the
contrary.”
Because there is no expression by the legislature regarding the prospective
or retroactive application of the amendment, first, we must examine the legislative
intent regarding retroactive or prospective application of the phrase “or
referenced.” While the 2023 comments to La. C.C.P. art. 966 states that the
amendment to Subparagraph (D)(2) contains “is not intended to make substantive
changes to the law,” we are cognizant that these comments are not the law,
however, they are helpful in discerning legislative intent. Carollo v. Dep’t of
Transportation & Dev., 21-01670 (La. 9/1/22), 346 So.3d 751, 762. Our Supreme
Court has instructed that legislative language should be interpreted on the
supposition that the legislature was aware of existing statutes, the rules of statutory
construction, and with knowledge of the effect of their acts and with a purpose in
view. Id. The Court has further instructed that when courts have “a duty in the
interpretation of a statute to adopt a construction which harmonizes and reconciles
it with other provisions dealing with the same subject matter.” Id. The express
purpose of the summary judgment procedure set forth in C.C.P. art. 966 is to
23-CA-21 15
“secure the just, speedy, and inexpensive determination of every action,” except
those in which it is disallowed. The article goes on to proclaim that this procedure
“is favored and shall be construed to accomplish these ends.” Adding the
phraseology “or referenced” to the statute, promotes the purpose of efficiency of
the procedure by allowing a party to reference documents already contained in the
record, which meet the criteria of supporting documents as defined in C.C.P. art.
966, rather than having to attach the same documents that are already in the record
to their motion. We find this is a procedural change to the statute, which in the
interest of judicial economy, should be applied retroactively in this case.5 At the
hearing of this matter, River Birch clearly stated that the Parish’s exhibits one
through four supported its opposition to the appellant’s motion for summary
judgment. These documents were in the record and accepted into the evidence by
the trial court at the hearing on the motion for summary judgment.6 Accordingly,
our de novo review includes the Parish’s exhibits, which River Birch referenced
during the motion hearing.
As discussed above, the documents submitted by the Parish and referenced
by River Birch include the deposition testimony of the expert surveyor, Mr.
Lambert, as well as the survey which identifies the location of the potholes. River
Birch contends that Mr. Lambert’s survey is uncontroverted evidence of the
5
Cf. Ricketson v. McKenzie, 23-0314 (La. App. 1 Cir. 10/4/23), 2023 WL 7037495, in which the First
Circuit found that because the 2023 amendment to La. C.C.P. art. 966D(2) changed the law by creating an
alternative means by which a party may have their documents supporting and opposing the motion for
summary judgment, that this amendment is substantive.
6
We recognize that the 2023 revisions to C.C.P. art. 966 added section A(4)(b) stating: “Any document
listed in Subsubparagraph (a) of this Subparagraph previously filed into the record of the cause may be
specifically referenced and considered in support of or in opposition to a motion for summary judgment
by listing with the motion or opposition the document by title and date of filing. The party shall
concurrently with the filing of the motion or opposition furnish to the court and the opposing party a copy
of the entire document with the pertinent part designated and the filing information.” In order to conform
with the goals of the summary judgment procedure, in this particular case, we will consider the
documents relied on by River Birch because the record is clear that these documents had been furnished
to the court and the opposing party.
23-CA-21 16
position of the potholes on the property of the Highway 90 right-of-way, and
therefore, there is no basis to impose garde upon River Birch for this property.
In opposition, the appellant argued that River Birch has repaired potholes on
South Kenner Road. In support of this contention, the appellant attached an
affidavit from the appellant, Mr. Johnson, as well as two other truck drivers who
regularly deliver waste to River Birch and who have observed River Birch
employees filling potholes in the area of the intersection of Highway 90 and South
Kenner Road. The appellant also attached the response to requests for admission
from River Birch in which it admitted that in 2018 and 2019, River Birch
employees filled potholes on South Kenner Road. In addition, the appellant
attached excerpts of the 1442 deposition of River Birch corporate representative,
Andrew Bordelon, who testified that River Birch employees performed
maintenance work in the nature of filling holes on South Kenner Road in 2018 and
2019. The appellant argued that because Mr. Bordelon could not identify the
location of the potholes filled by River Birch, there is a material issue of fact as to
the location of the potholes patched by River Birch, and that River Birch was not
entitled to summary judgment.
As discussed supra, if the mover on summary judgment will not bear the
burden of proof at trial on the issue that is before the court on the motion for
summary judgment, the mover’s burden on the motion requires that he point out to
the court the absence of factual support for one or more elements essential to the
adverse party’s claim, action, or defense. Here, in their motion for summary
judgment, River Birch pointed out to the court that it had evidence to show that the
potholes which the appellant alleges caused the accident were located on the
Highway 90 right of way. At that point the burden shifted to the appellant to
produce factual support sufficient to establish the existence of a genuine issue of
23-CA-21 17
material fact. The appellant did this by introducing competent evidence that River
Birch repaired potholes on and around South Kenner Road. Thus, there is a
material issue of fact as to whether River Birch’s actions of maintaining the
roadway are sufficient to prove that River Birch had garde over the area where the
potholes alleged to have caused the plaintiff’s accident are located.7 Accordingly,
the trial court erred in granting River Birch’s motion for summary judgment,
dismissing the appellant’s claims against River Birch with prejudice.
CONCLUSION
For the foregoing reasons, the trial court judgment granting summary
judgment in favor of the defendant, the Parish of Jefferson, dismissing the claims
of Ronald Johnson with prejudice is affirmed. The trial court judgment granting
summary judgment in favor of the defendant River Birch, LLC, dismissing the
claims of Ronald Johnson with prejudice is reversed. This matter is remanded for
further proceedings as to the appellant’s claims against River Birch, LLC.
AFFIRMED IN PART; REVERSED IN PART; REMANDED
7
In ruling on a motion for summary judgment, reasonable factual inferences must be construed in favor
of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v.
Medders, supra, 775 So.2d at 1050.
23-CA-21 18
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 JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 20, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-21
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE MICHAEL P. MENTZ (DISTRICT JUDGE)
CATHERINE HILTON (APPELLANT) RON A. AUSTIN (APPELLANT) DEBORAH A. VILLIO (APPELLEE)
JAMES C. RAFF (APPELLEE) MICHAEL L. FANTACI (APPELLEE) ROBERT L. RAYMOND (APPELLEE)
WM. DAVID COFFEY (APPELLEE)
MAILED
MICHAEL J. MADERE (APPELLEE)
PHILIP E. RESO (APPELLEE)
SCOTT S. MCCORMICK (APPELLEE)
ATTORNEYS AT LAW
909 POYDRAS STREET
SUITE 3000
NEW ORLEANS, LA 70112