Shelley T. Moore v. BRP Investments, LLC

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

4wr__ NO. 2023 CA 0280

SHELLEY T. MOORS

VERSUS

BRP INVESTMENTS, L.L.C.

Judgment Rendered: NOY O 12023

On Appeal from the
18th Judicial District Court
Parish of West Baton Rouge, State of Louisiana
Trial Court No. 45975

The Honorable Elizabeth A. Engolio, Judge Presiding

Roy H. Maughan, Jr. Attorneys for Plaintiff A
- ppellant,
Namisha D. Patel Shelley T. Moore
Joshua D. Roy
Connor S. Thomas
Baton Rouge, Louisiana

Richard G. Duplantier, Jr. Attorneys for Defendant -Appellee,
Henry M. Weber BRP Investments, L.L.C.
New Orleans, Louisiana

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.

CW

WOLFE, J.

In this personal injury case, Shelley T. Moore appeals a decision of the trial

court denying Mr. Moore' s motion to continue a summary judgment hearing,

granting summary judgment in favor BRP Investments, L.L.C., and dismissing Mr.

Moore' s claims against SRP. For the reasons that follow, we affirm.

BACKGROUND

On May 4, 2019, Mr. Moore and his wife, Krystalynn, were staying at the

Hampton Inn in Port Allen, Louisiana, which was owned and operated by BRP. On

that rainy morning, the couple made plans to go shopping and get something to eat

in Baton Rouge. As Mr. Moore walked to his vehicle with his wife following behind,

Mr. Moore alleges that he slipped and fell on a yellow -painted stripe in the parking

lot near his vehicle. The parking lot was wet from the drizzling rain, and the couple

thought the painted stripe looked " wet," " slick," and " slippery," and appeared to be

freshly painted. Mr. Moore injured his left leg when he fell, but he did not make a

formal report of his injury to the Hampton Inn. Ultimately, Mr. Moore underwent

surgery to repair a fracture in his left leg.

On April 20, 2020, Mr. Moore filed this personal injury lawsuit against BRP

and, in a supplemental and amending petition, named BRP' s insurer, Amguard

Insurance Company, as an additional defendant. Before Amguard was added to the

lawsuit in September 2022, BRP filed a motion for summary judgment in April

2022. BRP argued that it was not liable for Mr. Moore' s damages on the grounds

that Mr. Moore had no proof that the parking lot striping was unreasonably

dangerous and, furthermore, the alleged hazardous condition was open and obvious.

In support of its motion, BRP relied on the deposition testimony of Mr. Moore and

his wife, along with answers to BRP' s interrogatories indicating that Mr. Moore was

not an expert in parking lot painting and he had no expert witness who could testify

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regarding the alleged hazardous condition of slippery painted striping in a parking

lot.

The hearing on the summary judgment was originally set to be heard by the

trial court on June 20, 2022, but the parties and the trial court agreed to continue the

summary judgment hearing to September 27, 2022, to allow for Mr. Moore to depose

a BRP representative. On September 8, 2022, Mr. Moore filed a motion for a second

continuance of the summary judgment hearing on the grounds that discovery was

not complete because he still needed to depose BRP' s corporate representative. BRP

opposed that motion; however, the trial court signed an order continuing the

summary judgment hearing to December 12, 2022. In early November, Mr. Moore

filed another motion to continue the matter for the third time, stating that

d] iscovery is not complete" and that he needed to retain an expert witness. BRP

again opposed the continuance, arguing that Mr. Moore had taken " no actions" to

complete discovery or to retain and name an expert witness.

The trial court set the continuance matter to be heard on the same day that the

hearing on BRP' s motion for summary judgment was docketed, and the parties were

notified of the hearing date by order of the trial court. Nevertheless, it is undisputed

that Mr. Moore did not file an opposition to BRP' s motion for summary judgment,

and the record does not reflect any objection to the matter being submitted without

a hearing to the trial court on December 12, 2022. 1 In a written judgment signed on

Jurisprudence since the amendment and reenactment of La. Code Civ. P. art. 966 by La. Acts
2015, No. 422, § 1, effective January 1, 2016, reflects that a contradictory hearing on a motion for
summary judgment is required except in cases otherwise agreed to by all of the parties and the
court, and where a timely opposition to the motion was not filed. See Viering v. Liberty Mutual
Ins. Co., 2017- 0204 ( La. App. Ist Cir. 9/ 27/ 17), 232 So. 3d 598, 603- 604 n. 6, writ denied, 2017-
1821 ( La. 12/ 15/ 17), 231 So. 3d 637 (interpreting " contradictory hearing" as it appears in La. Code
Civ. P. art. 966( C)( 1)( a) to mean that " both parties ... be afforded the privilege of oral argument,
except in those cases where the memorandum or opposition is untimely filed"). See also Louisiana
District Court Rule 9. 9( e), which provides that parties who fail to timely file their memorandum
in support of the motion for summary judgment or opposition may forfeit the privilege of oral
argument. Viering, 232 So. 3d at 604. In this case, Mr. Moore failed to file an opposition to BRP' s
motion for summary judgment; therefore, the trial court did not err in ruling on BRP' s motion
without hearing oral argument on the matter.

January 11, 2023, the trial court denied Mr. Moore' s motion to continue and granted

BRP' s motion for summary judgment, dismissing Mr. Moore' s claims against BRP

with prejudice. The trial court explicitly adopted BRP' s memorandum in support of

its motion for summary judgment as its reasons for judgment, and the judgment was

designated as final. Mr. Moore appealed.

LAW AND ANALYSIS

On appeal, Mr. Moore maintains that the trial court erred in denying his

motion to continue and in prematurely considering and granting BRP' s motion for

summary judgment. Mr. Moore argues that he had insufficient time to conduct

adequate discovery and also, that BRP' s insurer had not been served with the motion

for summary judgment. Initially, we note that BRP' s insurer did not join in BRP' s

motion for summary judgment since the insurer was not a party to the lawsuit until

five months after BRP' s motion was filed. Thus, Mr. Moore' s outstanding claims

against BRP' s insurer are not pertinent to this appeal. The trial court did not err in

considering BRP' s motion for summary judgment seeking dismissal of Mr. Moore' s

claims against BRP. A summary judgment may be rendered dispositive of a

particular issue, theory of recovery, cause of action, or defense, in favor of one or

more parties, even though the granting of the summary judgment does not dispose

of the entire case as to the party or parties. La. Code Civ. P. art. 966(E). 2 Moreover,

Mr. Moore has raised the issue of insufficient service on BRP' s insurer for the first

time on this appeal. Generally, a question regarding sufficiency of service of process

cannot be raised for the first time on appeal, but rather should be raised in a suit to

annul the judgment. La. Code Civ. P. art. 2002( A)( 2); State v. Kee Food, Inc.,

2 Although the Legislature recently amended La. Code Civ. P. art. 966, those amendments are not
applicable to the instant appeal. See 2023 La. Acts No. 317, § 1 ( effective August 1, 2023), and

2023 La. Acts No. 368, § 1 ( effective August 1, 2023).

4

2017- 0127 ( La. App. 1st Cir. 9/ 21/ 17), 232 So. 3d 29, 32, writ denied, 2017- 1780

La. 1215117), 231 So. 3d 632.

As for Mr. Moore' s contention that the trial court erred in denying him an

opportunity for adequate discovery prior to the hearing on the motion for summary

judgment, we find his argument without merit. There is no absolute right to delay

action on a motion for summary judgment until discovery is complete; the law only

requires that the parties have a fair opportunity to conduct discovery and present

their claims. See La. Code Civ. P. art. 966(A)(3). See also Trichell v. McClure,

2021- 1240 ( La. App. 1st Cir. 418122), 341 So. 3d 856, 862; Melancon v. Perkins

Rowe Assocs., LLC, 2016- 0219 ( La. App. 1 st Cir. 12/ 14/ 16), 208 So. 3d 925, 929.

A trial court has wide discretion in the control of its docket, case management, and

the determination of whether a continuance should be granted. Rover Group, Inc.

v. Clark, 2021- 1365 ( La. App. 1 st Cir. 418/ 22), 341 So. 3d 842, 846, writ denied,

2022- 00766 ( La. 9/ 20/ 22), 346 So. 3d 287. An appellate court will not disturb such

a ruling unless there is a clear showing the trial court abused its discretion. Id. We

conclude that after continuing the matter twice to accommodate Mr. Moore' s need

for additional time to depose BRP' s corporate representative and to retain an expert

witness, the trial court did not abuse its discretion in declining to continue the

summary judgment hearing once again for the same reasons given in the prior

continuances.

Turning to the merits of BRP' s motion for summary judgment, we are mindful

that appellate courts review summary judgments de novo under the same criteria that

govern the trial court' s consideration of whether summary judgment is appropriate.

Farrell v. Circle K Stores, Inc., 2022- 00849 (La. 3/ 17/ 23), 359 So. 3d 467, 471. A

trial court must grant a motion for summary judgment if the pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records, written

stipulations, and admissions show that there is no genuine issue as to material fact

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and that the mover is entitled to judgment as a matter of law. La. Code Civ. P. art.

966( A)(3) and ( 4). The summary judgment procedure is designed to secure the just,

speedy, and inexpensive determination of every action; the procedure is favored and

shall be construed to accomplish these ends. La. Code Civ. P. art. 966( A)(2).

The burden of proof is on the mover, but 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. Instead, the

mover must 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. An adverse party

to the motion may not rest on the mere allegations or denials of his pleading, but his

response must set forth specific factual support sufficient to establish the existence

of a genuine issue of material fact for trial. See La. Code Civ. P. art. 966( D)( 1). If

not,
then summary judgment shall be rendered against the adverse party if

appropriate. See La. Code Civ. P. art. 966( A)(3).

BRP relies on Mr. Moore' s deposition testimony to show that Mr. Moore

acknowledged that he knew the painted striping in the parking lot was wet due to

rain. BRP avers that the condition of wet parking lot striping was open and obvious,

and that Mr. Moore, in the exercise of reasonable care, would not have been injured.

Alternatively, BRP argues that Mr. Moore did not met his burden of proving that the

condition of the parking lot striping created an unreasonable risk of harm to guests

of the Hampton Inn. In Farrell, 359 So. 3d at 473, the Louisiana Supreme Court

discussed the traditional duty/risk analysis for determining whether premises

liability exists in a case involving a slip and fall in a parking lot. We find that same

analysis applies in this case.

Under the duty risk analysis, the plaintiff must prove five separate elements:

1) the duty element —the defendant had a duty to conform his conduct to a specific

2

standard; ( 2) the breach of duty element —the defendant' s conduct failed to conform

to the appropriate standard; ( 3) the cause -in -fact element — the defendant' s

substandard conduct was a cause -in -fact of the plaintiff' s injuries; ( 4) the scope of

duty element — the defendant' s substandard conduct was a legal cause of the

plaintiffs injuries; and, ( 5) the damages element —the plaintiff has sustained actual

damages. See Farrell, 359 So. 3d at 473. Thus, if Mr. Moore fails to prove any one

element by a preponderance of the evidence, BRP is not liable. Id. In order for BRP

to prevail on summary judgment, BRP is required to show an absence of factual

support for any of the elements of Mr. Moore' s cause of action.

The existence of a duty is a question of law. In this case, the general rule of

law is that the owner or custodian of property has a duty to keep the premises in a

reasonably safe condition. The owner or custodian must discover any unreasonably

dangerous condition on the premises, and either correct the condition or warn

potential victims of its existence. See Farrell, 359 So. 3d at 473- 474 ( citing La. Civ.

Code arts. 2315, 2316, 2317, and 2317. 1). BRP, as owner or custodian of the parking

lot at the Hampton Inn, owed such a duty to Mr. Moore.

The breach of duty element is a question of fact or a mixed question of law

and fact. Farrell, 359 So. 3d at 474. To make this determination, Louisiana courts

apply a risk/utility balancing test, which considers four pertinent factors: ( 1) the

utility of the complained -of condition; ( 2) the likelihood and magnitude of harm,

including the obvious and apparent nature of the condition; ( 3) the cost of preventing

the harm; and, ( 4) the nature of the plaintiffs activities in terms of social utility or

whether the activities were dangerous by nature. Id. In this case, the painted striping

in the parking lot was obviously present by design, with the purpose of providing

organized and clearly marked spaces to guide guests when parking their vehicles.

The painted striping did not create a condition that was likely to cause harm, but

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instead was intentionally placed in the parking lot to decrease the risk of harm to

guests using the parking lot.

The record is void of evidence concerning the nature or type of paint used on

the parking lot stripes. It is undisputed that Mr. Moore and his wife safely traversed

the parking lot when they first parked their vehicle. It is also undisputed that at the

time of Mr. Moore' s slip and fall, the parking lot and painted stripes were wet from

rain, which was clearly apparent to Mr. Moore and his wife. Whether the painted

stripes were slippery due to the wet/rainy condition or due to some other factor has

not been established. Thus, the fact that the wet condition of the parking lot stripes

was apparent to all who encountered the parking lot that rainy day leads us to

conclude that the likelihood and magnitude of the harm was minimal. The record

does not contain any evidence regarding the cost of preventing a slippery condition

on the painted stripes when the parking lot was wet. And finally, the activity that

Mr. Moore was engaged in —walking through a wet parking lot to his vehicle, and

stepping on a painted stripe — is something that is not dangerous by nature. An

accident alone does not support the imposition of liability, particularly considering

the normal hazards pedestrians face while traversing sidewalks and parking lots in

this state. Williams v. Leonard Chabert Med. Ctr., 98- 1029 ( La. App. 1 st Cir.

9/ 26/ 99), 744 So. 2d 206, 211, writ denied, 2000- 0011 ( La. 2/ 18/ 00), 754 So. 2d 974.

Therefore, that factor does not weigh heavily in the risk/utility balancing test.

After applying the factors of the risk/utility balancing test, we find that the

alleged hazardous condition of slippery -when -wet painted stripes in the Hampton

Inn parking lot was not unreasonably dangerous. Thus, BRP met its initial burden

of pointing out the absence of factual support for the breach of duty element in Mr.

Moore' s slip -and -fall claim. The burden shifted to Mr. Moore to produce factual

support sufficient to establish the existence of a genuine issue of material fact or that

BRP is not entitled to judgment as a matter of law. Mr. Moore failed to do so;

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consequently, summary judgment in favor of BRP is mandated by law. Whether

BRP failed to eliminate or warn against the condition of the wet parking lot stripes

is irrelevant since we find no proof that it is an unreasonably dangerous condition.

Mere allegations and speculation are not enough to defeat a properly supported

motion for summary judgment. See Gifford v. Arrington, 2014- 2058 ( La.

11126114), 153 So. 3d 999, 1000 ( per curiam). Given our ruling that BRP did not

breach a duty, we pretermit any further discussion of the cause -in -fact element, the

scope of duty element, and the damages element. See Farrell, 359 So. 3d at 479.

CONCLUSION

For the reasons set forth, we find that the trial court did not err in denying

Shelley T. Moore' s motion to continue BRP Investments, L.L.C.' s motion for

summary judgment or in granting summary judgment in favor of BRP Investments,

L.L.C., and dismissing Shelley T. Moore' s claims against BRP Investments, L.L.C.

The January 11, 2023 judgment of the trial court is affirmed. All costs of this appeal

are assessed to Shelley T. Moore.

AFFIRMED.

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SHELLY T. MOORE STATE OF LOUISIANA

COURT OF APPEAL
VERSUS
FIRST CIRCUIT

BRP INVESTMENTS, L.L.C.

Holdridge, J., dissenting.

I respectfully dissent from the majority opinion. I believe the trial court erred

in not continuing the December 12, 2022 hearings. The trial court had set the motion

for summary judgment and the motion to continue the summary judgment hearing

on that date. Pursuant to La. C. C. P. article 1601, absent peremptory grounds, a

continuance rests within the sound discretion of the trial court, which may grant a

continuance " if there is good ground therefor." An appellate court should not disturb

the trial court' s grant or denial of a continuance under La. C. C.P. art. 1601 absent a

clear abuse of discretion. City of Bogalusa v. Moses. 2020- 0165 ( La. App. 1 Cir.

4116/ 21), 323 So.3d 404, 407. In this case, the January 11, 2023 judgment states that

the matter was submitted on the pleadings. Louisiana Code of Civil Procedure

article 1605 states, " Every contested motion for a continuance shall be tried

summarily and contradictorily with the opposite party." In this case, the trial court

erred in not having a hearing on the plaintiff s motion to continue the hearing on the

motion for summary judgment. The record does not show that a hearing was held

on the motion for a continuance or that Mr. Moore' s attorney agreed to submit the

matter and not have a hearing. However, whether based on peremptory or

discretionary grounds, a contested motion for continuance must be tried summarily

and contradictorily with the opponent as required by Article 1605. See Hughes v.

Harvey, 2022- 0131 ( La. App. 1 Cir. 10/ 19122), 354 So. 3d 14, 16- 17, Landry v.

Landry, 2021- 0337 ( La. App. 1 Cir. 1018/ 21), 331 So. 3d 351, 356, writ denied,

2022- 00044 ( La. 3/ 2/ 22), 333 So. 3d 835. ( In many situations, the court may set the

hearing on the motion for continuance immediately prior to the hearing on the

substantive matter. If the mover fails to appear at the hearing, the trial court may

properly deny the continuance.) The trial court' s failure to hold the contradictory

hearing as required by La. C. C. P. art. 1605 for this contested continuance motion

constitutes legal error. Hughes, 354 So. 3d at 16; In re Elloie, 2005- 1499 ( La.

1119106), 921 So. 2d 882, 899.

Furthermore, La. C. C. P. art. 966( C) also provides, in pertinent part, as

follows: "( 1) Unless otherwise agreed to by all of the parties and the court: ( a) A

contradictory hearing on the motion for summary judgment shall be set not less than

thirty days after the filing and not less than thirty days prior to the trial date."

Moreover, La. C. C. P. art. 963( B) provides, in pertinent part, as follows: " If the order

applied for by written motion is one to which the mover is not clearly entitled, or

which requires supporting proof, the motion shall be served on and tried

contradictorily with the adverse party." The record contains no agreement between

the parties and the trial court to dispense with the contradictory hearing and submit

the summary judgment motion on the pleadings. In fact, Mr. Moore' s motion for a

continuance indicates he did not agree that the matter should even be heard on

December 12, 2022. A hearing on the motion for summary judgment, regardless of

whether evidence can be admitted or not, serves the important purpose of allowing

parties and/ or their counsel to present argument and engage with the tribunal.

Viering v. Liberty Mutual Insurance Co., 2017- 0204 ( La. App. 1 Cir. 9/ 27/ 17),

232 So. 3d 598, 604, writ denied, 2017- 1821 ( La. 12/ 15/ 17), 231 So. 3d 637. While

Louisiana District Court Rule 9. 9( e) provides that parties who fail to timely file their

memorandum in support of their motion or opposition in accordance with

subparagraphs ( b) and ( c) of the rule may forfeit the privilege of oral argument,

nothing in District Court Rule 9. 9 allows the trial court to waive a hearing on a

motion for summary judgment unless both parties agree. See Kinsley v. Baton

2

Rouge General Medical Center, 2022- 1225 ( La. App. 1 Cir. 612123), 2023 WL

3862028 ( wherein the trial court properly held a hearing on the motion for summary

judgment, thereby allowing the opposing party to argue why his opposition was

timely, and then ruled that the opposition was not timely and would not be admitted

and that the opposing party waived his right to oral argument. The trial court then

allowed for the late -filed opposition to be proffered into evidence. The trial court

correctly followed both La. C. G.P. art. 966 and Louisiana District Court Rule 9.9.)

In this case, there is nothing in the record that establishes a hearing in open court

was conducted by the trial court on the motion for summary judgment or the motion

for continuance, nor is there an agreement between the parties to submit the matter

without a hearing. Under the facts of this case, the trial court violated both the

provisions of La. C.C. P. arts. 966( C)( 1)( a) and 1605. For these reasons and in

accordance with the statutes, rules, and jurisprudence of this court, I would vacate

the judgment granting the summary judgment motion and would remand this matter

to the trial court with instructions that the matters be set for contradictory hearings.

1'