Mary Duran v. Roul's Deli Juicy Juicy, L.L.C. and ABC Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2021 CA 1600
MARY DURAN
Q_'y\ A VERSUS
ROUL' S DELI JUICY JUICY, L.L.C. AND ABC INSURANCE
COMPANY
Judgment Rendered: AUG 0 8 2022
On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 688998
Honorable Timothy E. Kelley, Judge Presiding
John W. Redmann Attorneys for Plaintiff A
- ppellant,
Edward L. Moreno Mary Duran
Kelly S. Rizzo
Gretna, LA
Julie E. Vaicius Attorneys for Defendant -Appellee,
Erin O. Braud TMA, C& P, LLC
Daniel R. Atkinson, Jr.
Metairie, LA
Roy H. Maughan, Jr. Attorney for Defendant -Appellee,
Baton Rouge, LA Roul' s Deli Juicy Juicy, L.L.C.
BEFORE: WHIPPLE, C. J., PENZATO, AND HESTER, JJ.
HESTER, J.
Plaintiff, Mary Duran, appeals the trial court' s grant of summary judgment in
favor of defendant, TMA, C& P, LLC, thereby dismissing her claims seeking
recovery for injuries sustained when she tripped and fell on defendant' s property.
For the following reasons, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
On January 31, 2019, Mary Duran was outside of Roul' s Deli Juicy Juicy,
L.L.C. (" Roul' s") and began to reach for the entrance door handle to the restaurant
when she tripped on an unmarked step. Ms. Duran fell and sustained injuries to her
cervical, thoracic, lumbar, and sacral spine regions, and to her left wrist and knee.
Ms. Duran initially filed a petition for damages against Roul' s and its unnamed
insurance company and subsequently amended the petition to add as defendants
TMA, C& P, LLC (" TMA"), the owner of the premises, and its unnamed insurance
company. Ms. Duran alleged that the accident was caused by the negligence of
Roul' s and/ or TMA ( sometimes hereinafter referred to as " defendants") and that
defendants either created the unreasonably dangerous condition, had actual notice of
the unreasonably dangerous condition, or the unreasonably dangerous condition
existed for such a period of time before Ms. Duran sustained her injuries that it would
have been discovered if defendants exercised reasonable care. Ms. Duran further
alleged that a defect or vice existed in the property owned by defendants and over
which defendants had sole custody and control and that the vice or defect could have
been prevented through the exercise of reasonable care.
TMA answered the petitions and later filed a motion for summary judgment,
seeking to be dismissed from the lawsuit. TMA maintained that summary judgment
was appropriate, as Ms. Duran could not establish liability on the part of TMA for
damages because the lessee, Roul' s, assumed responsibility for the condition of the
2
leased premises pursuant to La. R.S. 9: 32211 and because TMA was unaware of any
defect in the leased premises. Ms. Duran opposed the motion for summary
judgment. At the conclusion of the hearing on October 18, 2021, the trial court
granted TMA' s motion for summary judgment and dismissed Ms. Duran' s claims
against TMA with prejudice. The trial court signed a judgment in conformity with
its ruling on October 28, 2021. It is from this judgment that Ms. Duran appeals.
LAW AND ANALYSIS
The purpose of summary judgment is to pierce the pleadings and to assess the
proof in order to determine whether there is a genuine need for trial. Louisiana
Workers' Compensation Corp. v. B, B & C Associates, LLC, 2017- 1342 ( La.
App. 1 st Cir. 4/ 9/ 18), 249 So. 3d 18, 22. The initial burden of proof is on the mover.
La. Code Civ. P. art. 966( D)( 1). 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. Code Civ. P. art. 966( A)(3).
Appellate courts review summary judgments de novo, using the same standards
applicable to the trial court' s determination of the issues, and ask the same questions
the trial court does in determining whether summary judgment is appropriate.
Cabana Partners, LLC v. Citizens Bank & Trust Co., 2018- 0133 ( La. App. 1st
Cir. 12/ 21/ 18), 269 So. 3d 986, 990. See also La. Code Civ. P. art. 966( A)(3).
In determining whether the trial court properly granted TMA' s motion for
summary judgment, we must first examine whether TMA' s motion, memorandum,
and supporting documents showed that there was no genuine issue as to material fact
1 Louisiana Revised Statutes 9: 3221 provides as follows:
Notwithstanding the provisions of Louisiana Civil Code Article 2699, the owner of
premises leased under a contract whereby the lessee assumes responsibility for their
condition is not liable for injury caused by any defect therein to the lessee or anyone
on the premises who derives his right to be thereon from the lessee, unless the owner
knew or should have known of the defect or had received notice thereof and failed
to remedy it within a reasonable time.
3
such that TMA was entitled to judgment as a matter of law. See La. Code Civ. P.
art. 966( A)( 3). We first note that on May 19, 2021, when TMA filed its motion for
summary judgment, the only documents filed therewith were the memorandum in
support of the motion, a rule to show cause, a list of essential legal elements, and a
list of undisputed material facts. While an " Affidavit of Bruce MacMorran and
attached exhibits"
are referenced in the documents filed on May 19, 2021, neither
the affidavit nor any exhibits were filed with TMA' s motion for summary judgment
and corresponding documents.
On October 13, 2021, five days prior to the hearing on the motion for summary
judgment, an affidavit of Bruce MacMorran with three exhibits attached thereto was
filed into the record. The affidavit and attached exhibits, which include the lease
between Roul' s and TMA, appear in the record without reference to the motion for
summary judgment, are not attached to any pleading or document, and do not reflect
which party filed the documents in the record. However, counsel for TMA indicated
at the hearing that "[ t]here was a mix up ... where the affidavit that I filed —well,
supposed to be filed with my original motion somehow was not filed by my staff."
Counsel for Ms. Duran did not object to the affidavit and attached exhibits, and all
parties and the trial court agreed to proceed with the hearing on TMA' s motion for
summary judgment on October 18, 2021, at which time the trial court accepted the
evidence.
Under current La. Code Civ. P. art. 966( D)(2), we may consider only those
documents specifically filed in support of or in opposition to a motion for summary
judgment, even if those documents appear elsewhere in the record. La. Code Civ.
P. art. 966( D)( 2) & see Comments - 2015, comment ( k); Simon v. CenturyLink,
Inc., 2021- 0412 ( La. App. 1st Cir. 12/ 22/ 21), So. 3d 2021 WL
6065886, * 6- 7 ( citing Huggins v. Amtrust Insurance Company of Kansas, Inc.,
2020- 0516 (La. App. 1 st Cir. 12/ 30/ 20), 319 So. 3d 362, 366). However, TMA failed
M
to file any exhibits in support of its motion for summary judgment. Without the
affidavit of Bruce MacMorran, who is the property manager for TMA, TMA
presented no evidence establishing that Roul' s assumed responsibility for the
condition of the premises under the lease or any evidence showing that TMA was
unaware of any defect in the leased premises. Therefore, pursuant to our de novo
review, TMA did not meet its initial burden of proof as mover, and the burden never
shifted to Ms. Duran. See La. Code Civ. P. art. 966( D)( 1). Also see Successions of
Millet, 2021- 0355, 2021- 0356 ( La. App. 1st Cir. 12/ 22/ 21), So. 3d ,
2021 WL 6069368, * 11.
We acknowledge the agreeable nature of the parties and the trial court in
proceeding with the hearing after TMA admitted that the affidavit and exhibits were
not filed with the motion for summary judgment and, instead, were later filed
2
separately. However, under current La. Code Civ. P. art. 966( D)( 2), we cannot
consider these documents in our review of the motion for summary judgment, as
they were not specifically filed in support of TMA' s motion for summary judgment.
See Huggins, 319 So. 3d at 366- 67. We are constrained to find the trial court erred
in granting TMA' s motion for summary judgment and in dismissing Ms. Duran' s
claims against TMA.
2 Moreover, even if the affidavit was introduced into the record at the hearing, this court
could not consider such evidence, as parties are not permitted to introduce summary judgment
evidence at the hearing. Tillman v. Nationwide Mut. Ins. Co., 2020- 0250 ( La. App. 1st Cir.
2/ 22/ 21), 321 So. 3d 1017, 1022, n. 5, writ denied, 2021- 00429 ( La. 5/ 25/ 21), 316 So. 3d 446. Also
see Huggins, 319 So. 3d at 366, n. l.
R
CONCLUSION
For the foregoing reasons, we reverse the trial court' s October 28, 2021
judgment, granting TMA, C& P, LLC' s motion for summary judgment and
dismissing Mary Duran' s claims against TMA, C& P, LLC with prejudice. This
matter is remanded for further proceedings. All costs of the appeal from the October
28, 2021 judgment are assessed to TMA, C& P, LLC.
REVERSED AND REMANDED.