Freelance Constructions, L.L.C. Versus Sharon Adams, Wife of and Ernest Adams ( 2024 )

FREELANCE CONSTRUCTIONS, L.L.C. NO. 24-C-423
VERSUS FIFTH CIRCUIT
SHARON ADAMS, WIFE OF AND ERNEST COURT OF APPEAL
ADAMS
STATE OF LOUISIANA
October 25, 2024
Linda Wiseman
First Deputy Clerk
IN RE FREELANCE CONSRUCTION, L.L.C., IN ITS CAPACITY AS DEFENDANT-IN-RECONVENTION
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F.
MALONEY, DIVISION "D", NUMBER 836-013
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.
WRIT GRANTED IN PART AND DENIED IN PART
The relator, Freelance Construction, L.L.C., seeks review of the August 22,
2024, trial court judgment that denied its motion for summary judgment to
“Dismiss the Reconventional Demand of Sharon Adams and Ernest Adams.” For
the following reasons, we grant this writ application in part and deny it in part.
FACTS
On December 19, 2022, the relator filed suit against the respondents, Sharon
and Ernest Adams, alleging that the parties entered into a “series of contracts” for
the relator to repair damages to the respondents’ home caused by Hurricane Ida.
The relator alleged that it completed most of the work outlined in the construction
contracts, but stopped working on respondents’ home because they failed to make
payments for work that had been completed. The relator asserts that the
respondents have only paid $85,000 of the $134,078.30 owed and, despite
amicable demand, the respondents have refused to pay the remaining $49,078.30
due for work under these contracts. The respondents filed an answer and a
reconventional demand, asserting they paid the relator $100,030.00 of the total
project cost of $134,078.30. The respondents further alleged that the relator
performed the work incorrectly and incompletely, citing as an example that the
kitchen cabinets were the wrong color and were installed incorrectly, and that the
relator has shown no interest in attempting to correct the mistakes or complete the
job. The respondents also sought damages for mental anguish due to being
displaced from their home “longer than necessary.”
On April 23, 2024, the relator filed a motion for summary judgment to
dismiss the reconventional demand, asserting there are no genuine issues of
material fact and that the respondents cannot produce sufficient factual support to
prove their claims. In support of its motion, the relator attached the respondents’
answer to the petition and a purported affidavit from Lance Arcement, who is the
sole member and manager of the relator, Freelance Construction, L.L.C. The court
set the motion for a contradictory hearing on June 18, 2024. On June 17, 2024, the
respondents filed a motion to continue the hearing on the motion for summary
judgment due to their prior attorney leaving the firm and a new attorney taking
over the case. The court granted the continuance and reset the hearing on the
motion for summary judgment to August 12, 2024. On August 9, 2024, the
respondents filed an opposition to the motion for summary judgment, arguing there
are several genuine issues of material fact precluding summary judgment on the
claims in their reconventional demand, and they attached photographs of some of
the work performed. On that same date, the relator filed a reply memorandum
asserting the respondents’ opposition was untimely and asking the court to strike it.
At the hearing on the motion, the relator argued the opposition should be
stricken and that the respondents forfeited their right to oral argument due to the
untimely filing of the opposition. The attorney for the respondents stated that he
had difficulty contacting his clients, causing the delayed opposition. The trial
court denied the motion to strike and allowed the respondents’ attorney to argue in
opposition to the motion for summary judgment. The relator’s attorney then
objected to the photographs attached to the opposition, arguing they were not
authenticated and were not proper summary judgment evidence under La. C.C.P.
art. 966. The court stated that it would allow the respondents’ counsel to discuss
the photographs and “make his argument.” After hearing the arguments for each
side, the trial court granted the summary judgment in part, dismissing the
respondents’ claim for attorney fees and costs, and denied the motion for summary
judgment as to the remainder of the claims in the reconventional demand. This
timely writ application followed.
UNTIMELY OPPOSITION
In its first argument in this writ application, the relator asserts that the trial
court erred in considering the respondents’ untimely-filed opposition to the motion
for summary judgment. We agree.
According to La. C.C.P. art. 966B(2), an “opposition to the motion and all
documents in support of the opposition shall be filed and served in accordance with
Article 1313(A)(4) not less than fifteen days prior to the hearing on the motion.”
In the absence of consent by the parties, a trial court has no discretion to extend the
fifteen-day deadline for filing an opposition to a motion for summary judgment.
Auricchio v. Harriston, 20-01167 (La. 10/10/21), 332 So.3d 660, 661. A
continuance under La. C.C.P. art. 966(C)(2) “cannot serve as a pretext to
circumvent the deadlines set forth in La. C.C.P. art. 966(B)(2).” Mahe v. LCMC
Health Holdings L.L.C., 23-25 (La. 3/14/23), 357 So.3d 322.
In this case, the respondents’ opposition to the motion for summary
judgment was due fifteen days before the June 18, 2024, hearing. The continuance
granted by the trial court did not extend this deadline. The respondents did not file
their opposition memorandum until August 9, 2024, just three days prior to the
rescheduled hearing date. Accordingly, we find the trial court erred by considering
the untimely filed opposition to the motion for summary judgment, and we hereby
strike the opposition, including the attached photographs.
REVIEW OF SUMMARY JUDGMENT
Appellate courts review a motion for summary judgment de novo using the
same criteria that govern the trial court’s consideration of whether summary
judgment is appropriate. Varrecchio v. Lemoine Company, 23-603 (La. App. 5
Cir. 1/31/24), 381 So.3d 210, 214. The court should grant a motion for summary
judgment “if the motion, memorandum, and supporting documents show that there
is no genuine issue of material fact and that the mover is entitled to judgment as a
matter of law.” La. C.C.P. art. 966(A)(3). The party bringing the motion bears the
burden of proof; however, if the mover does not bear the burden of proof at trial,
the moving party must only point out that there is an absence of factual support for
one or more elements essential to the adverse party’s claim. La. C.C.P. art.
966(D)(1).
We now review the relator’s motion for summary judgment de novo, without
considering the respondents’ untimely filed opposition.
In its motion for summary judgment, the relator argues the respondents
cannot meet their burden of proof on the reconventional demand, because the facts
and evidence do not support the respondents’ claims. It contends the respondents
did not fulfill their obligations under the parties’ contracts and, thus, they have no
legal basis for their claims. In support of its motion for summary judgment, the
relator attached the respondents’ answer to the petition, as well as a purported
“affidavit” of Mr. Arcement. This document indicates that Freelance Construction,
L.L.C. substantially completed the work on the respondents’ home but stopped due
to the respondents’ refusal to make payments. It provides that, based on the
executed proposals, the work done, and the amount paid by the respondents, there
remains a balance due from the respondents of $49,078.30. However, this
“affidavit” is not signed by the affiant, Lance Arcement. An unsigned affidavit is
not admissible to support or oppose a motion for summary judgment. Simon v.
CenturyLink, Inc., 21-0412 (La. App. 1 Cir. 12/22/21), 340 So.3d 88. Thus, this
Court cannot consider the unsigned “affidavit” on de novo review.
The relator has not submitted any other documents or evidence to support its
motion for summary judgment. While the relator argues that the respondents did
not fulfill their obligations under the contracts, the respondents contend that the
relator performed the work incorrectly and did not attempt to correct the mistakes
or complete the job. Neither party has submitted any appropriate evidence to
support their claims, and genuine issues of material fact remain. As the mover on
the motion for summary judgment, the relator has not carried its burden of proving
that it is entitled to judgment as a matter of law. For this reason, we deny the
relator’s motion for summary judgment based on the showing made.
CONCLUSION
For the preceding reasons, we partially grant this writ, striking the
respondents’ untimely filed opposition. We partially deny the writ, finding that the
relator has not shown that it is entitled to summary judgment on the claims raised
in the respondents’ reconventional demand.
Gretna, Louisiana, this 25th day of October, 2024.
JJM
FHW
MEJ
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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400
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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 10/25/2024 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:
24-C-423
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Jacqueline F. Maloney (DISTRICT JUDGE)
Blake A. Altazan (Relator)
Dylan A. Thompson (Relator)
MAILED
Harry L. Cahill, III (Respondent) Peyton B. Burkhalter (Respondent) Kirk A. Patrick, III (Relator)
Attorney at Law Attorney at Law Attorney at Law
1100 9th Street 2540 Severn Avenue Post Office Box 1629
Gretna, LA 70053 Suite 129 Baton Rouge, LA 70821
Metairie, LA 70002