Raymond Thibodeaux Versus Allstate Insurance Company and Michael Romano

RAYMOND THIBODEAUX NO. 19-CA-458

VERSUS FIFTH CIRCUIT

ALLSTATE INSURANCE COMPANY AND COURT OF APPEAL
MICHAEL ROMANO
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 754-675, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

March 20, 2020

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg

AFFIRMED
RAC
MEJ
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
RAYMOND THIBODEAUX
Simone R. Nugent
D. Patrick Keating

COUNSEL FOR DEFENDANT/APPELLEE,
ALLSTATE INSURANCE COMPANY AND MICHAEL ROMANO
James L. Donovan, Jr.

CHAISSON, J.

Raymond Thibodeaux1 appeals a trial court ruling that granted summary

judgment in favor of defendants, Allstate Insurance Company and Michael

Romano. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On August 5, 2015, as Mr. Thibodeaux traveled down Canal Street in

Metairie on his motor scooter, he was struck by a large piece of an oak tree as it

fell into the street. This tree was located on the premises owned by Mr. Romano at

401 Papworth Avenue in Jefferson Parish and insured by Allstate Insurance

Company (“Allstate”). On October 23, 2015, as a result of injuries allegedly

received in this incident, Mr. Thibodeaux filed a petition for damages against Mr.

Romano and his insurer, Allstate. In the petition, Mr. Thibodeaux alleged that the

accident was a direct and proximate result of the negligence and want of care by

Mr. Romano in that he failed to properly inspect and maintain his premises, failed

to warn others of the hazardous condition that existed on his premises, and failed to

see and do what should have been seen and done in an effort to have averted the

occurrence of this incident.

On October 31, 2018, Allstate and Mr. Romano filed a motion for summary

judgment seeking dismissal of Mr. Thibodeaux’s claim on the basis that “there is

no genuine issue as to lack of evidence offered to demonstrate the necessary and

material fact that defendants knew or should have known of the ruin, vice, or

defect which may have been present in a tree located on their property and which

forms the basis of the allegation in Plaintiff’s petition for damages.” In support of

their motion, Allstate and Mr. Romano provided the following documents: an

excerpt from Mr. Thibodeaux’s deposition detailing the accident and his

1
Throughout the record, Mr. Thibodeaux’s name is spelled alternatively as “Thibodeaux” and
“Thibodaux.” Both the petition for damages and his deposition use the spelling “Thibodeaux;” we will
therefore use that spelling in this opinion.

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observations of the tree prior to the accident; Mr. Thibodeaux’s petition for

damages along with other pleadings, including discovery requests; Mr.

Thibodeaux’s exhibit and witness lists; and an affidavit executed by Mr. Romano,

in which he acknowledged ownership of the property and denied knowledge of any

vice, ruin, or defect in the subject tree located on his property.

Mr. Thibodeaux thereafter filed an opposition to defendants’ motion

asserting that summary judgment is precluded because a genuine issue of material

fact exists as to whether Mr. Romano had notice, either actual or constructive, of

the hazardous and/or defective condition of the tree. Mr. Thibodeaux maintained

that he had evidence that Mr. Romano was put on actual notice of the condition of

the tree approximately one year before the accident when an inspection was

performed on his house by Mr. Ed Rowley of House Call Home Inspection.

Further, Mr. Thibodeaux suggested that Mr. Romano had constructive notice of the

condition of the tree based on a mere visual observation of the tree’s large size and

the long branches hanging directly over the public roadway.

To support his opposition, Mr. Thibodeaux provided the following: various

photographs of the tree; the affidavit of Mr. Romano, in which he denied

knowledge of any vice, ruin, or defect in the subject tree located on his property;

an excerpt from the deposition of Mr. Thibodeaux, in which he described his

observation of the tree; excerpts from the deposition of Mr. Romano, detailing

measures taken with regard to the tree subsequent to the accident and the location

of the oak tree and branches in relation to the road; an excerpt from the deposition

of Angelle Romano, in which she acknowledged that a home inspection was

conducted before she and her husband, Michael Romano, finalized the purchase of

the property; the home inspection contract entered into on August 7, 2014, between

Mr. Romano and Mr. Rowley; and a letter, dated August 7, 2014, to Mr. Romano

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from Mr. Rowley, with the inspection report summary and the home inspection

report.

In response, defendants filed a reply memorandum as well as a formal

written objection to the admission of various exhibits offered by Mr. Thibodeaux

in support of his opposition to the motion for summary judgment. Specifically,

defendants opposed the admission of photographs (Exhibits A and B), the home

inspection contract (Exhibit G) and the letter from Mr. Rowley to Mr. Romano,

which included the home inspection report (Exhibit H), on the basis that these

exhibits did not qualify as permissible supporting documents pursuant to La.

C.C.P. art. 966(A)(4). Defendants also objected to the admission of the excerpt

from Mr. Romano’s deposition testimony pertaining to remedial measures taken

with regard to the tree subsequent to the accident (Exhibit E), asserting that this

evidence was inadmissible in a negligence claim pursuant to La. C.E. art. 407 and

thus should be excluded as a supporting document on the summary judgment

motion.

The motion for summary judgment came for hearing on February 20, 2019.

After considering the arguments of counsel, the trial court deferred ruling on the

matter to afford plaintiff’s attorney the opportunity to take the deposition of Mr.

Rowley, the home inspector. Subsequent to the taking of the deposition, Mr.

Thibodeaux filed a supplemental and amended opposition to defendants’ motion

for summary judgment, pointing out portions of Mr. Rowley’s deposition to

support his assertion that a genuine issue of material fact exists as to whether Mr.

Romano had notice of a defective tree on his premises. Relying on Mr. Rowley’s

deposition and home inspection report, Mr. Thibodeaux maintained that since

reasonable minds can differ as to the interpretation of the contents of the inspection

report and whether this report provided the requisite notice to Mr. Romano of the

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unreasonable risk of harm created by the oak tree in his front yard, summary

judgment is precluded.

Mr. Thibodeaux provided the following documents with his supplemental

and amended opposition: the deposition testimony of Mr. Rowley taken on

March 22, 2019, with attachments, including the home inspection contract, the

letter from Mr. Rowley to Mr. Romano setting forth a summary of his report, the

home inspection report, and various photographs of the tree; an excerpt from the

deposition testimony of Mr. Romano, in which he acknowledged that the branches

of the tree were hanging over the road; and a letter dated March 28, 2019, to Mr.

Thibodeaux’s attorney from Malcolm Guidry, a professional arborist, setting forth

his findings with regard to the subject tree and the area of the trunk where the limb

at issue separated from the tree.2

On May 20, 2019, the trial court resumed the summary judgment hearing,

allowed the attorneys to set forth their arguments, and then took the matter under

advisement. On July 2, 2019, the trial court granted defendants’ motion for

summary judgment and dismissed, with prejudice, Mr. Thibodeaux’s claim against

them, finding no genuine issue of material fact exists. In his reasons for judgment,

after reviewing the documents submitted, the trial judge found that defendants

pointed out “the absence of factual support for the essential element of the

plaintiff’s claim that Mr. Romano knew or in the exercise of reasonable care

should have known of any ruin, vice, or defect of the tree,” and that Mr.

Thibodeaux thereafter failed to produce factual support sufficient to establish the

existence of a genuine issue of material fact. In so ruling, the trial judge stated that

he declined to consider several of Mr. Thibodeaux’s exhibits, including various

2
At a hearing on April 23, 2019, on a motion by Mr. Thibodeaux to extend expert report deadlines, the
trial court ruled that the only additional evidence it would entertain at the continuation of the previously
recessed motion for summary judgment was the deposition testimony of Mr. Rowley, whose deposition
was already scheduled at the time of the February 20, 2019 hearing. Therefore, Mr. Thibodeaux’s
attorney proffered Mr. Guidry’s report.

19-CA-458 4

photographs (Exhibits A and B), the home inspection contract (Exhibit G), and the

letter from Mr. Rowley to Mr. Romano, which included the home inspection report

(Exhibit H), on the basis that “they are not permissible supporting documents to an

opposition to a motion for summary judgment.” In addition, the trial court also

declined to consider the excerpt from Mr. Romano’s deposition testimony (Exhibit

E) as “inadmissible evidence of subsequent remedial measures.”

Mr. Thibodeaux now appeals, challenging the trial court’s grant of

defendants’ motion for summary judgment, as well as his exclusion of various

exhibits introduced by Mr. Thibodeaux in support of his opposition to the motion

for summary judgment.

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

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

19-CA-458 5

existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

La. C.C.P. art. 966(A)(4) provides, “[t]he 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.” The legislative comments clarify that Subparagraph

(A)(4) contains the exclusive list of documents that may be filed in support of or in

opposition to a motion for summary judgment and “intentionally does not allow

the filing of documents that are not included in the exclusive list, such as

photographs, pictures, video images, or contracts, unless they are properly

authenticated by an affidavit or deposition to which they are attached.” Dorsey v.

Purvis Contracting Group, LLC, 17-369, 17-370 (La. App. 5 Cir. 12/27/17), 236

So.3d 737, 741, writ denied, 18-199 (La. 3/23/18), 239 So.3d 296.

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. Upton v. Rouse’s Enterprise, LLC, 186 So.3d at

1198-99.

We first turn our attention to Mr. Thibodeaux’s arguments relating to the

trial court’s evidentiary rulings. In particular, he contends that the trial court

improperly struck most of the evidence he produced in opposition to the summary

judgment, including photographs of the tree (Exhibits A and B), the building

inspection contract (Exhibit G) and the letter to Mr. Romano, which summarized

the results of the home inspection report and contained the home inspection report

(Exhibit H).3 These exhibits were attached to Mr. Thibodeaux’s original

3
The trial court also excluded the excerpt of Mr. Romano’s deposition regarding measures taken with the
tree subsequent to the accident. In his reply brief on appeal, Mr. Thibodeaux’s attorney acknowledges

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opposition to the motion for summary judgment and were objected to by

defendants on the basis that they did not qualify as permissible supporting

documents for summary judgment proceedings.

We agree that these exhibits, initially filed as unsworn attachments to Mr.

Thibodeaux’s original opposition, were not permissible supporting documents in

opposition to a motion for summary judgment. However, the trial court continued

the hearing on the motion for summary judgment to allow Mr. Thibodeaux to take

the deposition of Mr. Rowley. The previously submitted photographs (Exhibits A

and B) and the summarization of the home inspection report and the home

inspection report (Exhibit H), were attached to Mr. Rowley’s deposition, and Mr.

Rowley’s deposition was submitted with Mr. Thibodeaux’s supplemental

opposition.

We find that because Mr. Thibodeaux cured the objection to these particular

exhibits prior to the trial court ruling on defendants’ objection to these exhibits or

on the motion for summary judgment itself, the trial court should have considered

these exhibits.4 Upon our de novo review, we therefore consider the photographs

(Exhibits A and B) and the summarization of the home inspection report and the

home inspection report (Exhibit H), as attached to Mr. Rowley’s deposition.

Mr. Thibodeaux also complains that the trial court erred in excluding the

March 28, 2019 expert report of Mr. Guidry, the consulting arborist, in the

summary judgment proceedings. On February 28, 2019, prior to the expiration of

discovery deadlines, Mr. Thibodeaux filed a motion to extend expert deadlines for

the purposes of obtaining an expert arborist regarding this matter. Defendants

objected to this motion on the basis that Mr. Thibodeaux’s request was untimely,

that the portion of Mr. Romano’s deposition, which discusses subsequent remedial measures, is
inadmissible and should not be considered.
4
We note that although the trial judge’s reasons for judgment indicate that he did not consider these
exhibits, he did consider the deposition of Mr. Rowley, which was almost exclusively a discussion of his
home inspection report and the photographs.

19-CA-458 7

having been filed subsequent to their filing of the motion for summary judgment

and the initial hearing on that motion. On April 23, 2019, the trial court ruled that,

for purposes of the motion for summary judgment, it would not allow the

introduction of additional expert testimony, thereby excluding consideration of Mr.

Guidry’s report. On May 6, 2019, Mr. Thibodeaux filed his supplemental

opposition to defendants’ motion for summary judgment, in which he proffered

Mr. Guidry’s March 28, 2019 expert report and attached it to his opposition.

The impetus for Mr. Thibodeaux obtaining the arborist report was the

disclosure by defendants, after the filing of their motion for summary judgment, of

the home inspection report. Upon receipt of the previously undisclosed home

inspection report, Mr. Thibodeaux’s counsel advised defense counsel, in January of

2019, of her intent to obtain an expert arborist. Mr. Thibodeaux filed his motion to

extend expert deadlines on February 28, 2019, before the expiration of discovery

deadlines and almost three months prior to the continued hearing on the motion for

summary judgment. Under these unique circumstances, we find that the trial court

should have considered Mr. Guidry’s report.5 Upon our de novo review, we

therefore consider Mr. Guidry’s proffered report, but find, as discussed infra, that

his report does not change the outcome of the motion for summary judgment.

We now turn our attention, by conducting a de novo review of the evidence,

to whether summary judgment was appropriately granted in this matter. 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.

5
We note that Mr. Guidry’s report, as proffered, was not a sworn statement and therefore would not be
considered competent summary judgment evidence; however, upon receipt of Mr. Thibodeaux’s
supplemental opposition with the attached proffer, defendants did not object to the report on that basis.
See La. C.C.P. art. 966(D)(2).

19-CA-458 8

Mr. Thibodeaux’s claim for damages is governed by La. C.C. art. 2317.1,

which reads as follows:

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.

Thus, to recover damages caused by a defective thing, a plaintiff must prove

that the thing was in the defendant’s custody, that the thing contained a defect

which presented an unreasonable risk of harm to others, that this defective

condition caused damage, and that the defendant knew or should have known of

the defect. Luquette v. Great Lakes Reinsurance (UK) PLC, 16-422 (La. App. 5

Cir. 12/21/16), 209 So.3d 342, 348, writ denied, 17-136 (La. 3/13/17), 216 So.3d

806.

With regard to the element of knowledge, a plaintiff must prove that the

defendant had actual or constructive knowledge of the vice or defect. The concept

of constructive knowledge imposes a reasonable duty to discover apparent defects

in things under the defendant’s garde. Constructive knowledge can be found if the

conditions that caused the injury existed for such a period of time that those

responsible, by the exercise of ordinary care and diligence, must have known of

their existence in general and could have guarded the public from injury. Boutin v.

Roman Catholic Church of Diocese of Baton Rouge, 14-313 (La. App. 5 Cir.

10/29/14), 164 So.3d 243, 246-47, writ denied, 14-2495 (La. 2/13/15), 159 So.3d

469.

In the present case, the trial court granted defendants’ motion for summary

judgment on the basis that Mr. Thibodeaux failed to produce factual support

sufficient to establish the existence of a genuine issue of material fact as to the

essential element of Mr. Thibodeaux’s claim that Mr. Romano knew, or in the

19-CA-458 9

exercise of reasonable care, should have known of any ruin, vice, or defect of the

tree which caused the damage. On appeal, Mr. Thibodeaux challenges that

determination and maintains that summary judgment was not appropriate because a

material issue of fact existed as to whether Mr. Romano had notice of the allegedly

defective tree. Mr. Thibodeaux asserts that Mr. Romano clearly had both actual

and constructive notice of the hazardous condition that caused his injuries and

failed to take action to prevent this accident from happening. In particular, Mr.

Thibodeaux suggests that the tree itself provided Mr. Romano with constructive

notice of the hazard insofar as it was a very large oak tree with long branches

hanging directly over the public roadway. Further, Mr. Thibodeaux asserts that

Mr. Romano had actual notice of the defective tree at least one year prior to the

accident through the home inspection report that addressed issues relating to the

tree.

In response, defendants assert that Mr. Thibodeaux failed to rebut the motion

for summary judgment with any evidence indicating that he would be able to prove

that the tree had a defect and that Mr. Romano was or should have been aware of

the defect, and therefore, the motion for summary judgment was properly granted.

Defendants maintain there is no legal support for Mr. Thibodeaux’s assertion that

the mere hanging of the large tree limbs over the public roadway put Mr. Romano

on notice that the tree should be inspected regularly to prevent the falling of limbs.

Also, defendants dispute Mr. Thibodeaux’s assertion that the home inspection

report put Mr. Romano on notice about the defective condition of the tree. They

specifically note that Mr. Rowley’s report did not once mention that the tree

presented a hazard of limbs falling on the roadway but rather mentioned the

potential concerns with the tree pertaining to plumbing, foundational risks, and

damage to the roof or electrical lines due to the tree’s close proximity to them.

19-CA-458 10

In the present case, based on our de novo review of the motion for summary

judgment and supporting exhibits, defendants met their initial burden of pointing

out the absence of factual support for Mr. Thibodeaux’s claim that Mr. Romano

either knew or should have known of the ruin, vice, or defect of the tree located on

his premises. In particular, defendants presented an excerpt from Mr.

Thibodeaux’s deposition, in which he stated that he grew up in the neighborhood,

had driven down the street and passed that tree prior to the accident, and had never

thought that the tree or branch looked like it was going to fall down. Further, when

Mr. Thibodeaux was asked whether he had any indication that part of the tree was

going to fall, he replied, “I had no idea.” In his deposition testimony, Mr.

Thibodeaux described that the piece of the tree that fell had branches and leaves on

it, which were “all green as green can be.” Mr. Romano’s affidavit was also

submitted in support of the motion for summary judgment. Therein, Mr. Romano

stated that he is the owner of the immovable property located at 401 Papworth

Avenue in Metairie and that he “had no knowledge or reason to know of any vice,

ruin, or defect which was or may have been present in a tree located on his

immovable property prior to August 5, 2015.”

Mr. Thibodeaux thereafter failed to produce factual support to show that he

will be able to satisfy his evidentiary burden at trial. To support his argument that

there is a genuine issue of material fact regarding Mr. Romano’s notice of the

allegedly defective tree, Mr. Thibodeaux relies heavily on Mr. Rowley’s deposition

and home inspection report. In his deposition, Mr. Rowley, relying on his report

summary to Mr. Romano, acknowledged that he referenced the tree in the grounds

category, under landscaping, as follows:

The following concerns were noted at landscaping. Maintenance
needed, trees planted close to the structure, trees are touching or
overhanging the roof. Damage is possible. Large tree located on the
property. That may present problems now or in the future with
drainage, plumbing or foundation conditions. Recommend

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monitoring the situation for problems and consult with an expert as
needed.

Mr. Rowley also noted in the electrical section of the report that the tree

branches were touching the power lines and recommended that those limbs be

trimmed. When asked to explain his concerns about the tree, Mr. Rowley stated

that from a home inspector’s perspective, a large tree close to the house can

potentially pose problems to plumbing, foundation, and the drainage of the site.

Also, the branches resting on the roof could wear out the shingles and damage the

roof, and the branches touching the power lines could cause those wires to be

damaged or torn down.

In his deposition, Mr. Rowley stated that he is not an arborist and that he

was looking at the condition of the tree as it relates to the structure. Mr. Rowley

expressed that at the time he did his report, he was not aware that there was an

imminent chance of any part of the tree falling. He relayed that if he had seen

something that looked dangerous with regard to the tree, he may have noted it.

Considering Mr. Rowley’s deposition and home inspection report, along with the

other permissible supporting documents submitted by Mr. Thibodeaux, we find no

evidence that establishes a genuine issue of material fact exists as to Mr. Romano’s

notice of the allegedly defective condition of the tree.

On appeal, Mr. Thibodeaux insists that in light of Mr. Rowley’s deposition

testimony, which clarified his report, reasonable minds can certainly differ as to

the interpretation of the contents of the inspection report and whether this report

provided the requisite notice to Mr. Romano of the unreasonable risk of harm

created by the large oak tree in his front yard. We disagree. La. C.C.P. art. 2317.1

is clear that 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

19-CA-458 12

damage. While Mr. Romano was advised through the inspection report that the

large tree with the overhanging branches could present potential issues with regard

to the structure of the house, the evidence presented failed to show he was, at any

point, notified of any defective condition with respect to the health of the tree.

Neither the inspection report, nor Mr. Rowley’s deposition, indicated that the tree

or any limbs were dead or that any limbs hanging over the roadway created an

issue. Rather, the only concerns expressed with the overhanging limbs were that

the ones touching the roof and power lines could possibly cause damage to the roof

and the electrical wires.

Mr. Thibodeaux argues that Mr. Romano was advised in the home

inspection report that he should obtain a tree expert to inspect the tree, thereby

suggesting that if he had done so he would have been advised of the concerns

regarding the condition of the tree noted in Mr. Guidry’s report. We disagree with

Mr. Thibodeaux’s assertion that Mr. Romano was advised to have a tree expert

inspect the tree. Mr. Rowley’s home inspection report specifically stated:

“[r]ecommend monitoring the situation for problems and consult with an expert as

needed.” (emphasis added).

The recommendation to consult with an expert, with the qualification “as

needed,” clearly indicates that Mr. Romano should consult with an expert if his

observations of the tree, from his “monitoring the situation for problems,”

suggested to him that the tree might cause damage to the home or electrical lines

due to its close proximity to them. Nothing in the home inspection report indicated

that any portion of the tree was in danger of imminent collapse or that the tree was

in any way otherwise unhealthy. In fact, Mr. Rowley testified that he was not

inspecting the tree for that purpose and that he is not qualified to give such an

assessment.

19-CA-458 13

Mr. Thibodeaux has not submitted any evidence to suggest that any feature

of the tree observable to a layperson monitoring the tree should have prompted Mr.

Romano to consult with a tree expert prior to this incident. Not only did Mr.

Thibodeaux himself testify that he had observed the tree on a number of occasions

prior to the incident and did not see any indication that the tree was in danger of

falling down, but Mr. Guidry’s report includes the observation that “[w]hile the

tree may appear to be in a state of good health, structurally it is compromised,” a

clear indication that the defects identified by Mr. Guidry would not be known to

Mr. Romano upon mere observation of the tree. We therefore conclude that Mr.

Guidry’s report does not raise a genuine issue of material fact as to Mr. Romano’s

knowledge of any defects of the tree, and that the defects identified by Mr. Guidry

are irrelevant to the question of Mr. Romano’s knowledge.

CONCLUSION

Based on the foregoing, we find that Mr. Thibodeaux failed to prove that he

could meet his evidentiary burden at trial and, thus, summary judgment is

appropriate in this case. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

19-CA-458 14

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
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MARCH 20, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
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19-CA-458
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
D. PATRICK KEATING (APPELLANT) SIMONE R. NUGENT (APPELLANT) JARRED BRANDON KINNETT (APPELLEE)
JAMES L. DONOVAN, JR. (APPELLEE)

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