Marie Desrosier Versus Lexington Insurance Company and Certified Cleaning and Restoration, Inc.

MARIE DESROSIER NO. 19-CA-495
VERSUS FIFTH CIRCUIT
LEXINGTON INSURANCE COMPANY AND COURT OF APPEAL
CERTIFIED CLEANING AND
RESTORATION, INC. STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 749-779, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
July 29, 2020
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and Hans J. Liljeberg
JUDGMENT VACATED; REMANDED
RAC
SJW
HJL
COUNSEL FOR PLAINTIFF/APPELLANT,
MARIE ROSE DESROSIER
Kevin J. Christensen
COUNSEL FOR DEFENDANT/APPELLEE,
CERTIFIED CLEANING AND RESTORATION, INC.
Kevin C. O'Bryon
CHAISSON, J.
Marie Desrosier seeks review of the trial court’s granting of summary
judgment in favor of Certified Cleaning and Restoration, Inc. (“Certified”) on the
open account claim asserted by Certified against Ms. Desrosier in its
reconventional demand and also on the claims asserted by Ms. Desrosier against
Certified in her main demand. For the reasons that follow, we vacate the judgment
of the trial court and remand the matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
On December 8, 2014, Ms. Desrosier’s house, located on Deerlick Drive in
Jefferson Parish, was damaged by a fire. According to Ms. Desrosier, she
promptly reported the fire to her homeowner’s insurer, Lexington Insurance
Company (“Lexington”).
On December 12, 2014, Ms. Desrosier’s daughter, Georgena Desrosier,1
signed an Emergency Work Authorization with Certified, which authorized that
company to “perform emergency repairs in the form of smoke damage cleaning/
contents cleaning/ pack-out.” After cleaning the contents, Certified placed them in
a storage facility pending renovation of Ms. Desrosier’s house. On December 23,
2014, following completion of the fire and water damage restoration services,
Georgena Desrosier signed a certificate expressing her satisfaction with the
services performed by Certified. According to Certified, it invoiced $15,614.14 for
its work on the structure and $13,000.00 for its work on the contents.
Dissatisfied with the handling of her claim, Ms. Desrosier filed a petition for
damages against Lexington and Certified. With regard to Lexington, Ms.
Desrosier alleged that Lexington failed to honor the appraisal clause in the
1
There is a discrepancy in the record regarding the spelling of the name of Ms. Desrosier’s daughter. In
the petition for damages and Ms. Desrosier’s affidavit, it is spelled “Georgena,” whereas in some of the
documents submitted by Certified, it is spelled “Georgiana.” For consistency purposes, this opinion will
use “Georgena.”
19-CA-495 1
insurance policy, improperly misrepresented the policy terms and unfairly forced
its preferred vendor, Certified, upon Ms. Desrosier to perform immediate work,
and violated Louisiana’s Unfair Trade Practices Act.
With regard to Certified, Ms. Desrosier claimed that based on the
misrepresentation that she had to use this insurance preferred vendor, her daughter
signed the work authorization. In her petition, Ms. Desrosier alleged that Certified
thereafter wrongfully removed many items from her house; that upon inspection, it
was discovered that the items in Certified’s possession had not been cleaned; and
that Certified thereafter improperly submitted a bill to Lexington in the amount of
$13,885.96. Ms. Desrosier also alleged that Certified improperly cleaned her fire
and smoke damaged home and thereafter submitted an invoice for $15,614.14,
despite the fact that Ms. Desrosier wanted replacement of the fire and smoke
damaged parts of the home as well as an independent analysis before any work was
done. Ms. Desrosier further asserted that she should not have to pay the amounts
submitted by Certified because she was misled by both Lexington and Certified as
to her rights under her policy of insurance. In addition to maintaining that she
should not have to pay Certified, Ms. Desrosier also alleged that Certified
committed the tort of conversion by holding her items at a storage facility despite
her demand for release and further alleged that Certified violated Louisiana’s
Unfair Trade Practices Act.
Subsequent to the filing of her petition for damages, Ms. Desrosier reached a
settlement with Lexington, and on June 29, 2015, the trial court signed an order
that dismissed, with prejudice, all of Ms. Desrosier’s claims against Lexington. In
response to the claims made against Certified in Ms. Desrosier’s petition, Certified
filed an answer and reconventional demand, seeking payment for the services
provided to Ms. Desrosier.
19-CA-495 2
On August 13, 2018, Certified filed a motion for summary judgment
alleging that the pleadings and evidence on file show that there is no genuine issue
of material fact and requesting both a dismissal of Ms. Desrosier’s claims in her
main demand and an award of judgment on its reconventional demand on open
account for the services provided to Ms. Desrosier. In its memorandum in support
of its motion for summary judgment, Certified asserted that it provided fire and
water damage restoration services at Ms. Desrosier’s residence pursuant to written
authorization, that it completed its services on December 23, 2014, at which time
the customer executed a Certificate of Satisfaction, that it thereafter invoiced Ms.
Desrosier $15,614.14 for work on the structure and $13,000.00 for the contents,
and that Ms. Desrosier failed to pay for the services provided as well as the balance
due for storage charges in the amount of $6,706.00.2
In support of its motion for summary judgment, Certified provided, as
Exhibit A, the affidavit of Daniel J. Haag, the president of Certified. In his
affidavit, which was executed on August 7, 2018, Mr. Haag attested to the
following:
1. That he is the President of Certified Cleaning & Restoration, Inc.,
in which capacity he was directly involved with dealings with the
homeowner and homeowner’s representatives, supervised and
monitored the actual work performed, and dealt directly with the
rental of storage facilities for the homeowner’s contents, in
connection with fire and water damage restoration services at
2221 Deerlick, Harvey, Louisiana 70058;
2. That a written authorization for the performance of fire and water
damage restoration services by Certified Cleaning & Restoration,
Inc. was executed by or on behalf of the homeowner of 2221
Deerlick, Harvey, Louisiana 70058 on December 12, 2014,
following a fire event of December 8, 2014, a copy of which is
attached as Exhibit “A-1”;
3. That a representative of the homeowner executed a Certificate of
Satisfaction following the completion of Certified’s services on or
2
In its memorandum in support of its motion for summary judgment, Certified maintained that it is also
entitled to an award of $4,000.00 in attorney fees for the prosecution of the claim on open account
pursuant to La. R.S. 9:2781.
19-CA-495 3
about December 23, 2014, a copy of which is attached as Exhibit
“A-2”;
4. That the fire and water damage restoration services provided by
Certified Cleaning & Restoration Services, Inc. were in fact
performed in satisfactory and workmanlike fashion;
5. That pursuant to the agreement with the homeowner, Certified
issued an invoice for services rendered in connection with fire and
water damage to the structure at 2221 Deerlick, Harvey, Louisiana
70058 in the total amount of $15,614.14;
6. That in connection with the fire and water damage restoration
services performed on the contents at 2221 Deerlick, Harvey,
Louisiana 70058, Certified issued an invoice in the amount of
$13,885.96, which was reduced to $13,000.00 pursuant to
agreement with the customer;
7. That Certified has never received any payment for either of these
invoices, although the homeowner was reimbursed by her insurer;
8. That Certified thereafter incurred charges for the storage of the
homeowner’s contents from January, 2015 through October, 2016,
in the total amount of $11,313.00;
9. That the total charges due in connection with storage should be
reduced by $2,492.00, representing the charges for the first six
months’ storage, which Certified agreed with the homeowner to
waive, and by $2,115.00, representing a single payment made on
or about May 27, 2016, leaving a total balance due for storage
charges in the amount of $6,706.00;
10.That Certified is due to recover $15,614.14 for structure,
$13,000.00 for contents, and to be reimbursed $6,706.00 for
storage expense, such that the total amount due is $35,320.14;
11.That all of the services provided by Certified Cleaning &
Restoration Services, Inc. at 2221 Deerlick, Harvey, Louisiana
70058 were provided pursuant to the homeowner’s prior
authorization, and performed to the homeowner’s expressed
satisfaction, in the ordinary course of business; and,
12.That the above and foregoing is true and correct, and based upon
my personal knowledge.
Two exhibits were attached to Mr. Haag’s affidavit: 1) the Emergency Work
Authorization dated December 12, 2014, signed by Georgena Desrosier, which
authorized Certified “to perform emergency repairs in the form of smoke damage
cleaning/ contents cleaning/ pack-out,” at 2221 Deerlick Lane in Harvey (Exhibit
19-CA-495 4
A-1)3; and 2) the Certificate of Satisfaction signed by Georgena Desrosier on
December 23, 2014, in which she acknowledged that the work performed by
Certified was performed to her satisfaction (Exhibit A-2).
In addition to the affidavit, Certified attached the requests for admissions
sent to Ms. Desrosier’s former attorney (Exhibit B) and to Ms. Desrosier
personally (Exhibit C)4 to its motion for summary judgment, which included the
following three requests for admissions:
1. Lexington Insurance Company paid you in full for the invoices
submitted by Certified Cleaning & Restoration, Inc., in the
amounts of $13,885.96 for contents and $15,614.14 for structure.
2. You did not remit any funds, or make any payment, to Certified
Cleaning & Restoration, Inc. in connection with the services
rendered at 2221 Deerlick, Harvey, Louisiana 70058, except for
the $2,115.00 payment made on or about May 27, 2016.
3. Other than the $2,115.00 payment made on or about May 27,
2016, you have never made any offer of any payment for the
contents cleaning charges of Certified Cleaning & Restoration,
Inc., or for the structure cleaning charges of Certified Cleaning &
Restoration, Inc. or for the storage expense incurred by Certified
Cleaning & Restoration, Inc.
In its memorandum in support of its motion for summary judgment,
Certified maintained that the requests for admissions, which were never responded
to and thus deemed admitted, and Mr. Haag’s affidavit support the granting of its
motion for summary judgment as these exhibits undisputedly showed that
Certified’s services were properly provided and that the amounts due were correct.
Ms. Desrosier thereafter filed a memorandum in opposition to Certified’s
motion for summary judgment. Therein, Ms. Desrosier claimed that summary
3
The Emergency Work Authorization also provided, in pertinent part, the following: “We further agree to
pay or direct payment to Certified Cleaning & Restoration, Inc. upon receipt of their invoice for their
services, in accordance with their work order, a copy of which is attached .... We acknowledge that any
portion of work not covered by insurance company, such as deductibles, or additional work requested by
us, must be paid by us on or before completion of work. We agree for our insurance company,
Lexington, to pay Certified Cleaning & Restoration, Inc. for their work upon completion of emergency
repairs and services.”
4
Exhibit D is the certified mail receipt for the requests for admissions sent to Ms. Desrosier.
19-CA-495 5
judgment is precluded because Certified failed to establish the prima facie
existence of an open account or even a valid and enforceable contract. In support
of this argument, Ms. Desrosier pointed out that Certified merely presented the
self-serving testimony of its alleged president, Mr. Haag, and failed to offer the
billing summary, itemized invoices, or costs of materials or estimates. Ms.
Desrosier further noted that Mr. Haag did not identify himself as his company’s
records custodian or seek to explain any of his company’s billing practices or
record-keeping protocols. Additionally, Ms. Desrosier noted that Certified failed
to submit a contract signed by the actual homeowner but rather only provided a
document signed by an alleged agent, for whom no authority was established.
Ms. Desrosier attached two exhibits to her opposition to Certified’s motion
for summary judgment. In her personal affidavit, attached as “Exhibit A,” Ms.
Desrosier asserted that the only language she can speak is Haitian Creole, that she
cannot read or write in any language, and that she has learned to partially write her
name as her “mark.” She thereafter attested that she did not hire “Mr. Danny,” that
she did not make her “mark” on the papers her daughter, Georgena Desrosier,
showed to her, that she did not give Mr. Danny permission to clean and store her
furniture, and that he threw away some of the items he was supposed to store.5 In
her affidavit, Ms. Desrosier set forth the poor quality of the work performed by
Certified as well as her belief that Mr. Danny worked for and would be paid by the
insurance company.
As “Exhibit B” to her opposition, Ms. Desrosier attached her late answers to
Certified’s requests for admissions. Therein, she denied that she was paid in full
by Lexington for the invoices submitted by Certified and claimed that “Joey” (her
former attorney) was paid by the insurance company, admitted that the only
5
In her affidavit, Ms. Desrosier stated that her daughter, Georgena, read her Mr. Danny’s affidavit and
that “[i]t is not true.”
19-CA-495 6
payment she made was $2,115.00 to the “insurance guy” to prevent him from
throwing away her family photographs and other keepsakes, and was “unable to
admit or deny” whether she ever made any offer of payment to Certified other than
the $2,115.00 payment.6
Thereafter, Certified filed a reply memorandum asserting that Ms.
Desrosier’s opposition failed “to provide an evidentiary basis to dispute Certified’s
sworn contention that the services it provided at Desrosier’s home were properly
authorized and satisfactorily performed, and subject of payment in full by
Desrosier’s insurer.” Further, Certified objected to Ms. Desrosier’s affidavit
(Exhibit A) as deficient in form and substance and to her answers to Certified’s
requests for admissions (Exhibit B) as untimely.
On May 7, 2019, Certified’s motion for summary judgment was heard,
submitted, and taken under advisement. On June 7, 2019, the trial court granted
Certified’s motion for summary judgment as to the claims asserted by Ms.
Desrosier against Certified in the main demand and as to the claim asserted by
Certified against Ms. Desrosier in the reconventional demand for failure to pay for
services on an open account. The trial court thereafter dismissed, with prejudice,
the claims asserted by Ms. Desrosier in the main demand against Certified. With
regard to the reconventional demand, the trial court ordered judgment in favor of
Certified and against Ms. Desrosier on the claim of failure to pay for services on an
open account in the amount of $35,320.14 for damages, together with judicial
interest from the date of judicial demand. In addition, the trial court awarded
attorney fees to Certified in the amount of $4,000.00 pursuant to La. R.S. 9:2781.7
6
In explaining that response, Ms. Desrosier stated: “Joey told me that I didn’t have to pay. The Insurance
was supposed to pay the Insurance Guy.”
7
The trial court designated its judgment as a final judgment.
19-CA-495 7
Ms. Desrosier now appeals the trial court’s granting of summary judgment
in favor of Certified. In her appellate brief, she asserts that summary judgment is
precluded because Certified failed to meet its burden of proof and because
numerous material factual issues are in dispute. Ms. Desrosier specifically argues
that Certified failed to establish the existence of an open account, noting that Mr.
Haag’s affidavit was inadequate to meet Certified’s required burden of proof. Ms.
Desrosier points out that Mr. Haag does not identify himself as the custodian of
records as required by law, and provides no invoices, correspondence, or other
documentation supporting the claimed amounts due. She further asserts that
Certified failed to establish the existence of a contract with Ms. Desrosier, noting
that the work authorization and Certificate of Satisfaction were not signed by her,
and no proof was offered to show that person’s authority to sign as Ms. Desrosier’s
representative.
In contrast, Certified maintains that it undisputedly showed, by the exhibits
introduced in connection with its summary judgment motion, that Certified’s
services were properly provided and that the amounts due were correct. Therefore,
it maintains that summary judgment was properly granted.
Although it appears that Certified performed cleaning and restoration
services for Ms. Desrosier, we find, for the following reasons, that Certified did not
present sufficient evidence to warrant the granting of summary judgment on its
open account claim against Ms. Desrosier. Additionally, we find that Certified did
not carry its burden of proof regarding Ms. Desrosier’s claims against Certified to
warrant the granting of summary judgment in Certified’s favor on those claims.
DISCUSSION
A motion for summary judgment is a procedural device used to avoid a full-
scale trial when there is no genuine issue of material fact. Upton v. Rouse’s
Enterprise, LLC, 15-484 (La. App. 5 Cir. 2/24/16), 186 So.3d 1195, 1198, writ
19-CA-495 8
denied, 16-580 (La. 5/13/16), 191 So.3d 1057. The summary judgment procedure
is favored and is designed to secure the just, speedy, and inexpensive
determination of every action. La. C.C.P. art. 966(A)(2).
According to La. C.C.P. art. 966(A)(3), 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(D)(1) sets forth the burden of
proof in a motion for summary judgment as follows:
The burden of proof rests with the mover. Nevertheless, 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. The burden is on 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.
Appellate courts review a judgment granting or denying a motion for
summary judgment de novo. Thus, appellate courts ask the same questions the trial
court does in determining whether summary judgment is appropriate: whether
there is any genuine issue of material fact, and whether the mover is entitled to
judgment as a matter of law. Nions v. Richardson, 10-610 (La. App. 5 Cir. 3/9/11),
62 So.3d 217, 219. The 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. Ricalde v. Evonik Stockhausen, LLC, 16-178 (La. App. 5 Cir. 9/22/16),
202 So.3d 548, 551-52, writ denied, 16-1923 (La. 12/16/16), 212 So.3d 1170.
In order to sustain an action on open account, a creditor bears the burden of
proving the demand by a preponderance of the evidence.8 To prove an open
8
Pursuant to La. R.S. 9:2781, an “open account” includes any account for which a part or all of the
balance is past due, whether it reflects one or more transactions and whether or not at the time of
contracting the parties expected future transactions.
19-CA-495 9
account, the creditor must first prove the account by showing that it was kept in the
course of business and by introducing supporting testimony regarding its accuracy.
Once the creditor has established a prima facie case, the burden shifts to the debtor
to prove the inaccuracy of the account or to prove that the debtor is entitled to
certain credits. Kaye v. Karp, 19-194 (La. App. 5 Cir. 12/30/19), 286 So.3d 1281,
1287; Ochsner Clinic Foundation v. Arguello, 11-326 (La. App. 5 Cir. 11/29/11),
80 So.3d 622, 625.
Certified’s Suit on Open Account
In the present case, Ms. Desrosier contends that Certified failed to establish
the existence of an open account, noting that Mr. Haag’s affidavit was inadequate
to meet Certified’s required burden of proof. Ms. Desrosier points out that Mr.
Haag does not identify himself as the custodian of records as required by law, and
provides no invoices, correspondence, or other documentation supporting the
claimed amounts due. In contrast, Certified contends that Mr. Haag’s affidavit
alone fully satisfies all elements of prima facie proof on open account. We
disagree with Certified’s contention.
La. C.C.P. art. 966(A)(4) provides that the only documents that may be filed
in support of or in opposition to the motion are pleadings, memoranda, affidavits,
depositions, answers to interrogatories, certified medical records, written
stipulations, and admissions. With regard to affidavits, La. C.C.P. art. 967(A) sets
forth the following:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. The supporting and opposing
affidavits of experts may set forth such experts' opinions on the facts
as would be admissible in evidence under Louisiana Code of Evidence
Article 702, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith. The court may permit affidavits to be
19-CA-495 10
supplemented or opposed by depositions, answers to interrogatories,
or by further affidavits.
In Mr. Haag’s affidavit, he attests that Certified issued invoices for
$15,614.14 for services rendered in connection with fire and water damage to the
structure at 2221 Deerlick and for $13,000.00 in connection with fire and water
damage restoration services performed on the contents of the residence. Mr. Haag
also states that Certified incurred storage charges for the contents in the total
amount of $11,313.00. With regard to the storage charges, Mr. Haag states that it
waived $2,492.00 and that Ms. Desrosier paid $2,115.00 of those charges, leaving
a balance due of $6,706.00. Despite Mr. Haag’s repeated references to the
invoices for the services it performed, those invoices were not attached to his
affidavit. 9 Further, no documentation verifying the amount of the storage charges
were attached to Mr. Haag’s affidavit.
La. C.C.P. art. 967(A) is clear that sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto or served
therewith. As Certified failed to attach any invoices or documents supporting the
amounts claimed to be due by Ms. Desrosier, we find that Certified has not met its
initial burden of proving the accuracy of the account, thereby precluding the
granting of summary judgment on its open account claim.
In its appellate brief, Certified cites W. Handlin Marine, Inc. v. Gulf States
Marine, Inc., 624 So.2d 907 (La. App. 5th Cir. 1993), writ denied, 93-2851 (La.
1/13/94), 631 So.2d 1166, to support its contention that the testimony of the
company president can prove a prima facie case. Certified’s reliance on this case
9
We note that although Certified attached an Emergency Work Authorization to its motion for summary
judgment, that document does not provide a set dollar amount for the services to be performed or state the
method, or rate, upon which Ms. Desrosier would be charged for the services. It does state that payment
would be made upon “receipt of their invoice for their services, in accordance with their work order, a
copy of which is attached;” however, no work order was attached to the Emergency Work Authorization
filed by Certified. Furthermore, the Certificate of Satisfaction signed by Ms. Desrosier’s daughter and
attached to Certified’s motion for summary judgment does not acknowledge receipt of invoices, makes no
reference whatsoever to invoices, and does not indicate the dollar amount of any charges for services for
which Ms. Desrosier was purportedly satisfied.
19-CA-495 11
to support its position that the affidavit of Mr. Haag alone fully satisfies all
elements of prima facie proof of the open account is misplaced. First, the W.
Handlin Marine case involved a trial on the merits of an open account claim.
Second, the evidence in that case was not limited to the testimony of the company
president, but rather, the trial court also considered documentary evidence in
finding that the open account claim had been proven.
Although Certified, in its appellate brief, contends that Mr. Haag’s affidavit
alone is sufficient to satisfy its burden of proof for summary judgment on its open
account, it also argues that its requests for admissions directed to Ms. Desrosier,
which were not timely answered and thus deemed admitted pursuant to La. C.C.P.
art. 1467, support its position that there is no dispute that the services were
properly provided and the amounts due are correct, thus entitling it to summary
judgment on the open account.
We initially note that the trial court seemingly allowed these admissions to
be withdrawn, as evidenced by its discussion of Ms. Desrosier’s actual responses
in its reasons for judgment.10 Moreover, even if we accept Certified’s contention
that Ms. Desrosier’s failure to timely respond required that the requests for
admissions be deemed admitted, those admissions would not change our
determination that Certified failed to meet its burden of proving the accuracy of
the account. We particularly note that the requests for admissions, like Mr. Haag’s
10
Ms. Desrosier ultimately submitted her answers to Certified’s requests for admissions, as Exhibit B,
with her memorandum in opposition to Certified’s motion for summary judgment. Thereafter, at the
hearing on the motion for summary judgment, Ms. Desrosier’s attorney suggested that her answers should
be “permitted and respected,” noting that her previous attorney had “abandoned her in between when they
were submitted.” In the subsequent reasons for judgment on the summary judgment motion, the trial
court acknowledged Certified’s contention that since Ms. Desrosier’s responses were not timely, the facts
contained in its requests for admissions should be deemed admitted pursuant to La. C.C.P. art. 1467.
However, the trial court thereafter discussed Ms. Desrosier’s responses. Accordingly, it appears that Ms.
Desrosier’s late filing of the answers and her attorney’s suggestion that her answers be permitted can be
construed as a request for the withdrawal of the admissions, which the trial court implicitly allowed as
evidenced by its discussion of Ms. Desrosier’s responses in its reasons for judgment. We find no abuse of
the trial court’s discretion in allowing the withdrawal of the admissions. See La. C.C.P. art. 1468 which
allows for the withdrawal of admissions. See also Roach Plumbing & Heating Inc. v. Fairfield Towers,
LLC, 44,551 (La. App. 2 Cir. 8/19/09), 17 So.3d 493, 495 (where the Second Circuit found that the
defendant’s filing of an untimely denial in response to the request for admissions of facts constituted a
withdrawal of any admissions).
19-CA-495 12
affidavit, merely set forth the alleged total of the amounts due for cleaning of the
contents and structure, but did not attach supporting invoices to the requests.11
Furthermore, we note that Certified’s requests for admissions do not even
mention storage charges, much less set forth an amount for those services or attach
invoices for those services.12 In our opinion, these deficiencies render the requests
for admissions, even if deemed admitted, insufficient to establish the accuracy of
the open account on which Certified seeks summary judgment.
Ms. Desrosier’s claims against Certified
As to Ms. Desrosier’s claims against Certified, because Certified will not
bear the burden of proof on those claims at trial, its burden on that portion of its
motion for summary judgment was 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). Although Certified filed for summary
judgment on both its claim on open account against Ms. Desrosier and on Ms.
Desrosier’s claims against Certified, its supporting evidence and arguments to the
trial court addressed solely its claim against Ms. Desrosier. A review of Certified’s
supporting memorandum, its attached exhibits, and counsel’s arguments to the trial
court at the summary judgment hearing, reveal that there was no argument or
discussion regarding Ms. Desrosier’s claims against Certified.13 We find that
Certified has failed to carry its burden to point out to the court the absence of
factual support for one or more elements essential to Ms. Desrosier’s claims. 14 We
11
Ms. Desrosier had previously denied that these amounts were due in her answer to Certified’s
reconventional demand.
12
We find this particularly troublesome in light of the fact that the storage services were not provided by
Certified itself, but by a third-party.
13
The singular reference to Ms. Desrosier’s claims against Certified was counsel’s statement at the
hearing that he was “not a hundred percent clear what the claim is.”
14
To the extent that Certified’s position regarding Ms. Desrosier’s claims, under a very liberal
construction, might be presumed to be that Certified’s entitlement to summary judgment on its open
account would tend to negate Ms. Desrosier’s ability to potentially prove any of her claims rooted in her
dissatisfaction with Certified’s services, we conclude that our vacating Certified’s summary judgment on
19-CA-495 13
therefore conclude that genuine issues of material fact remain regarding Ms.
Desrosier’s claims against Certified and accordingly vacate Certified’s summary
judgment as to those claims.
CONCLUSION
Having found that Certified failed to carry its burden of proof on both its
claim against Ms. Desrosier on an open account and on Ms. Desrosier’s claims
against Certified, and that genuine issues of material fact remain as to both claims,
we hereby vacate the summary judgment in favor of Certified on both claims and
remand the matter to the trial court for further proceedings.
JUDGMENT VACATED;
REMANDED
its open account would also necessitate us vacating Certified’s summary judgment dismissing Ms.
Desrosier’s claims.
19-CA-495 14
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
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24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
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