William Duckworth and Donnie Kaglear v. Susan Curole

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0611

WILLIAM DUCKWORTH AND DONNIE KAGLEAR

VERSUS

SUSAN CUROLE

Judgment Rendered APR 19 2024

On Appeal from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 717360

Honorable Trudy M. White, Judge Presiding

Cullen R. Clement Attorneys for Plaintiffs -Appellees,
Joseph C. Possa William Duckworth and
Baton Rouge, LA Donnie Kaglear

L. Richard Roy, III Attorney for Defendant -Appellant,
Baton Rouge, LA Susan Curole

BEFORE: McCLENDON, HESTER, AND MILLER, JJ.

HESTER, J

In this matter, a dog owner appeals the trial court judgment granting partial

summary judgment, which found her strictly liable to the plaintiffs for any damages

caused by her dog during a July 14, 2021 incident. The trial court also granted

plaintiffs' motion to deem responses admitted, denied defendant' s motion to

withdraw deemed responses admitted, and denied defendant' s motion to continue.

For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On March 31, 2022, William Duckworth and Donnie Kaglear (" Plaintiffs")

filed a " Petition for Damages" naming Susan Curole as the defendant. According to

their petition, on or about July 14, 2021, Mr. Duckworth was walking two Boston

Terriers he co -owned with Mr. Kaglear when suddenly and without warning or

provocation, he and his dogs were attacked by a brown Boxer owned by Ms. Curole,

and Mr. Duckworth and his dogs sustained injuries. Plaintiffs contend that Ms.

Curole could have prevented the unprovoked attack by her dog and is therefore

strictly liable for all damages occasioned by the attack under La. Civ. Code art. 2321.

Plaintiffs attached to their petition requests for admissions, interrogatories, and

requests for production of documents. On May 9, 2022, Ms. Curole answered the

petition, contending that if any injuries existed, the injuries were caused by the

provocation of Plaintiffs " screaming and hollering" at Ms. Curole' s dog.

On October 4, 2022, Plaintiffs filed a " Motion for Partial Summary Judgment

on Liability and Motion to Deem Responses Admitted" seeking, a judgment finding

Ms. Curole solely and strictly liable for the damages sustained by Plaintiffs in

connection with the July 14, 2021 dog attack. Plaintiffs also requested that the trial

court deem their requests for admissions admitted because Ms. Curole did not timely

respond. Plaintiffs' motions were set for a hearing on December 5, 2022.

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On December 2, 2022, Ms. Curole filed " Defendant' s Motion to Continue

Plaintiffs' Motion for Partial Summary Judgment on Liability and Plaintiffs' Motion

to Deem Responses Admitted." Ms. Curole requested a continuance because her

counsel had been undergoing active oncology treatment since July 21, 2022,

underwent a related surgery on November 23, 2022, and had been physically unable

to draft, finalize, and file his opposition motions. Concurrently with her motion to

continue, Ms. Curole filed " Defendant' s Motion to Withdraw Plaintiffs' Motion to

Deem Responses Admitted" and attached responses to Plaintiffs' requests for

admissions. Ms. Curole did not file a response to the motion for summary judgment.

A hearing on all motions was held on December 5, 2022. On January 13,

2023, the trial court signed a judgment granting Plaintiffs' motion for partial

summary judgment, deeming " that [ Ms. Curole] is solely and strictly liable for her

unleashed and unsupervised dog and for the damages sustained to the [ P] laintiffs in

connection with the July 14, 2021 dog attack"; granting Plaintiffs' motion to deem

responses admitted; denying Ms. Curole' s motion to withdraw deemed responses

admitted; and denying Ms. Curole' s motion to continue.' Thereafter, pursuant to

Ms. Curole' s request, on January 17, 2023, the trial court provided " Written Reasons

for Judgment Relative to Plaintiffs' Motion for Partial Summary Judgment on

Liability and Motion to Deem Requests Admitted." It is from the January 13, 2023

judgment that Ms. Curole appeals, contending that the trial court erred in finding

Plaintiffs' requests for admissions deemed admitted, in not considering and denying

Ms. Curole' s request for a continuance, and in granting Plaintiffs' motion for partial

summary judgment.

LAW AND ANALYSIS

Denial of the Motion to Continue

The trial court designated the judgment as final pursuant to La. Code Civ. P. art. 1915( B)( 1)
finding no just reason for delay. We find no abuse of discretion in the trial court' s designation.
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Ms. Curole contends that the trial court erred in not considering and in denying

her request for a continuance. Under La. Code Civ. P. art. 966( B)( 2) any opposition

to a motion for summary judgment and all documents in support of the opposition

shall be filed and served in accordance with Article 1313 not less than fifteen days

prior to the hearing on the motion. For good cause shown, the court may order a

continuance of the hearing. La. Code Civ. P. art. 966( C)( 2). A trial court has broad

discretion in the control of its docket, case management, and the determination of

whether a continuance should be granted. An appellate court will not disturb such a

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

Group, Inc. v. Clark, 2021- 1365 ( La. App. 1st Cir. 4/ 8/ 22), 341 So. 3d 842, 846,

writ denied, 2022- 00766 ( La. 9120122), 346 So. 3d 287. Ms. Curole' s counsel

requested a continuance on behalf of Ms. Curole based on his active ongoing

oncology treatments and a November 23, 2022 surgery that caused him to be

physically unable to timely draft the responses. Although Plaintiffs' motions for

partial summary judgment and to deem responses admitted was filed on October 4,

2022, Ms. Curole' s request for continuance was not filed until the afternoon of

Friday, December 2, 2022, before the Monday, December 5, 2022 hearing. At the

hearing, Plaintiffs pointed out that the motion for continuance was the first time they

were made aware of Ms. Curole' s counsel' s health issues. While we are certainly

sympathetic to the health challenges of Ms. Curole' s counsel, under the

circumstances in this case, we cannot say that the trial court abused its discretion in

refusing to continue the hearing on Plaintiffs' motion for partial summary judgment

and motion to deem responses admitted.

Withdrawal ofAdmissions

Ms. Curole asserts that the trial court erred in finding Plaintiffs' requests for

admissions deemed admitted. A party may serve upon any other party a written

request for the admission of the truth of any relevant matters of fact. La. Code Civ.

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P. art. 1466. Generally, the matter is deemed admitted if the party to whom the

request is directed does not respond within thirty days after service of the request.

La. Code Civ. P. art. 1467( A). Any matter deemed admitted pursuant to La. Code

Civ. P. art. 1467 is conclusively established unless the court, on motion, permits

withdrawal or amendment of the admission. La. Code Civ. P. art. 1468. The court

may permit withdrawal of an admission when the presentation of the merits of the

action will be subserved thereby and the party who obtained the admission fails to

satisfy the court that withdrawal of the admission will prejudice him in maintaining

his action or defense on the merits. La. Code Civ. P. art. 1468; Hall v. Our Lady

of the Lake R.M.C., 2006- 1425 ( La. App. 1 st Cir. 6120/ 07), 968 So. 2d 179, 183.

Further, Louisiana courts have allowed late -filed denials to requests for admissions

to constitute requests for withdrawal of those admissions, even if the responses were

extremely late and were not presented to the court by a motion to withdraw or amend

the admissions. See Mason v. Thompson, 2023- 0730 ( La. App. 1st Cir. 211124)

2024 WL 446043, * 3 ( unpublished), citing Hall, 968 So. 3d at 183 and Apache

Corp. v. Talen' s Marine & Fuel, LLC, 2017- 0714 ( La. App. 1st Cir. 217118), 242

So. 3d 619, 622- 23. It is within the trial court' s discretion to determine whether to

allow the withdrawal of the admission. Prestage v. Clark, 97- 0524 ( La. App. 1 st

Cir. 12/ 28/ 98), 723 So. 2d 1086, 1091, writ denied sub nom., Prestige v. Clark, 99-

0234 ( La. 3126199), 739 So. 2d 800. Admissions may be used to establish a

controversial issue constituting the crux of the matter in litigation. Vardaman v.

Baker Center, Inc., 96- 2611 ( La. App. 1st Cir. 3113198), 711 So. 2d 727, 731.

In its written reasons, the trial court provided a timeline of the litigation as

established in the record. The timeline stated that on March 31, 2022, Plaintiffs filed

requests for admissions with their petition, which were served on Ms. Curole on

April 5, 2022. Having received no reply, Plaintiffs sent correspondence requesting

an update on June 28, 2022. On August 18, 2022, a 10. 1 Conference was held where

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Plaintiffs' counsel agreed to follow up on August 22, 2022, to determine how much

time Ms. Curole' s counsel needed to respond to discovery.Z On August 23, 2022,

Plaintiffs' counsel sent correspondence regarding the August 18, 2022 agreement,

giving Ms. Curole' s counsel three weeks to respond. After three weeks passed

without a response from Ms. Curole' s counsel, Plaintiffs filed their motion for partial

summary judgment on October 4, 2022. Plaintiffs' motion was set for a hearing on

Monday, December 5, 2022. The order setting the matter for hearing and requesting

service on Ms. Curole through her attorney of record was issued on October 4, 2022.

On Friday, December 2, 2022, Ms. Curole filed a motion to continue and a motion

to withdraw the requests for admissions.

Although Ms. Curole' s counsel revealed to Plaintiffs for the first time his

health issues in the motion for continuance, he did not explain why he did not

provide any response to the requests for admissions or seek to have the admissions

withdrawn until the Friday afternoon before the Monday summary judgment

hearing. Given the dilatory manner in which Ms. Curole responded to Plaintiffs'

requests for admissions, eight months after they were propounded, three months

after the 10. 1 Conference, and only two days before the hearing on the motion for

summary judgment, we find no abuse of discretion by the trial court under La. Code

Civ. P. art. 1468 in disallowing withdrawal of the admissions. Consequently, the

requests for admissions were properly deemed admitted.

Summary Judgment

Ms. Curole contends that the trial court erred in granting Plaintiffs' motion for

partial summary judgment. A motion for summary judgment is a procedural device

used when there is no genuine issue of material fact for all or part of the relief prayed

for by a litigant. Beer Industry League of Louisiana v. City of New Orleans,

2 The trial court' s written reasons inadvertently refer to the 10. 1 Conference date as August 18,
2021.

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2018- 0280 ( La. 6/ 27/ 18), 251 So. 3d 380, 385- 86. See La. Code Civ. P. art. 966. A

summary judgment is reviewed on appeal de novo, with the appellate court using the

same criteria that govern the trial court' s determination of whether summary

judgment is appropriate; i.e., whether there is any genuine issue of material fact, and

whether the movant is entitled to judgment as a matter of law. Beer Industry

League, 251 So. 3d at 386.

The burden of proof rests with the mover. La. Code Civ. P. art. 966( D)( 1). If

the mover will bear the burden of proof at trial, the mover has the burden of showing

that no genuine issue of material fact remains. Only when the mover makes this

showing does the burden shift to the opposing party to present evidence

demonstrating a material factual issue remains. Action Oilfield Services, Inc. v.

Energy Management Company, 2018- 1146 ( La. App. 1st Cir. 4/ 17/ 19), 276 So. 3d

538, 541- 42.

Because it is the applicable substantive law that determines materiality,

whether a particular fact in dispute is material can only be seen in light of the

substantive law applicable to the case. Pumphrey v. Harris, 2012- 0405 ( La. App.

1st Cir. 11/ 2/ 12), Ill So. 3d 86, 89. Louisiana Civil Code art. 2321 governing

liability for damages caused by animals provides:

The owner of an animal is answerable for the damage caused by the
animal. However, he is answerable for the damage only upon a

showing that he knew or, in the exercise of reasonable care, should have
known that his animal' s behavior would cause damage, that the damage
could have been prevented by the exercise of reasonable care, and that
he failed to exercise such reasonable care. Nonetheless, the owner of

a dog is strictly liable for damages for injuries to persons or
property caused by the dog and which the owner could have
prevented and which did not result from the injured person' s
provocation of the dog. Nothing in this Article shall preclude the court
from the application of the doctrine of res ipsa loquitur in an appropriate
case. ( Emphasis added.)

Plaintiffs, as movers on the partial motion for summary judgment who will

bear the burden of proof at trial, had the burden of showing that there was no genuine

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issue of material fact that any injuries caused by the dog could have been prevented

by the owner and that the injuries did not result from the injured person' s

provocation ofthe dog. See La. Code Civ. P. art. 966( D)( 1); La. Civ. Code art. 2321.

Plaintiffs listed the exhibits offered in support of their motion for summary

judgment in their memorandum as Exhibit A, a file -stamped copy of the requests for

admissions; Exhibit B, the affidavit of Mr. Kaglear; Exhibit C, the affidavit of Mr.

Duckworth; Exhibit D, the rule 10. 1 certificate, stating Plaintiffs' efforts to obtain

discovery with their correspondence documenting their efforts attached; and Exhibit

E, the return copy showing personal service of the petition and discovery on Ms.

Curole. However, although Exhibit A, the requests for admissions, and Exhibit E,

the service return, were listed in the memorandum, the documents were not attached

to the motion for summary judgment.

Article 966, which governs motions for summary judgment, was recently

amended by 2023 La. Acts. No. 317, § 1, effective August 1, 2023. This court has

determined that the 2023 amendments to Article 966, which expanded the exclusive

list of documents that are considered competent evidence in support of or in

opposition to a motion for summary judgment and changed the duties of parties in

supporting and opposing motions for summary judgment, are substantive and

therefore cannot be applied retroactively. See Ricketson v. McKenzie, 2023- 0314

La. App. 1st Cir. 10/ 4/ 23), So. 3d 2023 WL 7037495 * 4; see also La.

Civ. Code art. 6 (" In the absence of contrary legislative expression, substantive laws

apply prospectively only. Procedural and interpretive laws apply both prospectively

and retroactively, unless there is a legislative expression to the contrary.").

Accordingly, we must apply the version of Article 966 in effect at the time of

December 5, 2022 hearing on the parties' motions for summary judgment to the

matter before us.

Prior to the 2023 amendments, the trial court could only consider those

documents filed in support of or in opposition to the motion for summary judgment.

La. Code Civ. P. art. 966( D)(2). The mover' s supporting documents must prove the

essential facts necessary to carry the mover' s burden. Troncoso v. Point Carr

Homeowners Ass' n, 2022- 0530 ( La. App. 1st Cir. 1110123), 360 So. 3d 901, 914-

15.

Since the requests for admissions and service return were not attached to

Plaintiffs' motion for summary judgment, we cannot consider those documents

when deciding the motion for summary judgment. We can only consider the

documents attached to the motion for summary judgment, which are Mr. Kaglear' s

affidavit, Mr. Duckworth' s affidavit, and the rule 10. 1 certificate.

Mr. Duckworth, in his affidavit, said that he was in the front yard with his two

Boston Terriers, who were leashed, and the Boxer attacked them. He stated that he

yelled and screamed" for his spouse " to help [ him] wrestle the dog off of ours."

Mr. Kaglear, in his affidavit, said the dog was in their yard when he heard his

husband " yell for [ him,]" and when he came out, he saw the large dog in their front

yard. He stated that the dog attacked their two smaller dogs, and he had to jump in

to separate the big dog from their dogs.

As noted, to prove strict liability of a dog owner on summary judgment,

Plaintiffs must show that any damages did not result from the injured person' s

provocation of the dog. Our review reveals that the affidavits of Plaintiffs alone do

not establish that Plaintiffs did not provoke the dog, which is an essential element

necessary to prevail on their claim of strict liability. Therefore, a genuine issue of

material fact remains. Accordingly, since Plaintiffs did not establish that Ms. Curole

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Following the 2023 amendments, La. Code Civ. P. art. 966( D)(2) now allows the court to
consider documents filed or referenced in support of or in opposition to the motion for summary
judgment.

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was strictly liable for any damages caused by her dog, the burden never shifted to

Ms. Curole, and summary judgment is not appropriate.

CONCLUSION

For the foregoing reasons, the portions of the January 13, 2023 judgment

granting Plaintiffs' motion to deem responses admitted; denying Ms. Curole' s

motion to withdraw deemed responses admitted; and denying Ms. Curole' s motion

to continue, are affirmed. The portion of the January 13, 2023 judgment granting a

partial summary judgment, finding Ms. Curole strictly liable for any damages caused

by her dog in the July 14, 2021 incident is reversed. All cost of the appeal shall be

allocated as follows: fifty percent to plaintiffs -appellees, William Duckworth and

Donnie Kaglear, and fifty percent to defendant -appellant, Susan Curole.

AFFIRMED IN PART AND REVERSED IN PART.

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