Choice Foundation v. Law Industries, LLC

CHOICE FOUNDATION * NO. 2024-C-0380

VERSUS *
COURT OF APPEAL
LAW INDUSTRIES, LLC, ET *
AL. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-04985, DIVISION “J”
Honorable D. Nicole Sheppard, Judge
******
Judge Tiffany Gautier Chase
******
(Court composed of Judge Tiffany Gautier Chase, Judge Dale N. Atkins, Judge
Rachael D. Johnson)

Steven F. Griffith, Jr.
Benjamin W. Janke
Camalla K. Guyton
Alexandra B. Rychlak
William Wildman III
BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC
201 St. Charles Avenue, Suite 3600
New Orleans, Louisiana 70170

COUNSEL FOR RELATOR

Kerry J. Miller
Rebekka C. Veith
C. Hogan Pascal
Paul C. Thibodeaux
Danielle C. Teutonico
FISHMAN HAYGOOD, LLP
201 St. Charles Avenue, 46th Floor
New Orleans, Louisiana 70170

COUNSEL FOR RESPONDENTS

WRIT GRANTED;
JUDGMENT REVERSED;
STAY DENIED;
REMANDED WITH INSTRUCTIONS
JULY 17, 2024

TGC
DNA
RDJ

Relator/Defendant, Jacobs Project Manager Co./CSRS Consortium

(hereinafter “Relator”) seeks review of the trial court’s July 2, 2024 judgment

granting the motion to strike filed by Respondents/Plaintiffs, Choice Foundation

and Orleans Parish School Board (hereinafter “Respondents”). After consideration

of the writ application and applicable law, we grant the writ and reverse the trial

court’s judgment. Relator’s request for a stay of the proceedings is denied and the

matter is remanded to the trial court for further proceedings consistent with this

opinion.

Relevant Facts and Procedural History

This application for supervisory writs arises from damages relating to an

asbestos remediation and construction project. Trial in this matter was originally

set for May 6, 2024. In accordance with the pre-trial scheduling order, the deadline

to file motions for summary judgment was February 19, 2024. On the morning of

the original trial date, the trial was reset to July 22, 2024. On May 15, 2024,

Relator filed a motion for summary judgment maintaining our Supreme Court’s

recent decision in Bonilla v. Verges Rome Architects, 2023-00928 (La. 3/22/24),

382 So.3d 62 is dispositive to the issue of liability. Respondent moved to strike

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Relator’s motion for summary judgment arguing the motion was untimely because

it violated the filing delays in the trial court’s scheduling order. The trial court

granted the motion to strike finding Relator’s motion for summary judgment

untimely. This application for supervisory writs followed.

Standard of Review

The trial court’s grant or denial of a motion to strike is reviewed under the

abuse of discretion standard of review. Tran v. Collins, 2020-0246, p. 5 (La.App. 4

Cir. 8/20/21), 326 So.3d 1274, 1279 (citation omitted). “[T]he abuse of discretion

standard of review is highly deferential to the trial court unless the court exercised

its discretion upon an erroneous view of the law or clearly erroneous view of the

facts.” Id. (citation omitted).

Discussion

Relator contends the trial court erred in granting Respondents’ motion to

strike therefore refusing to hear its motion for summary judgment. Specifically,

Relator maintains its motion for summary judgment was timely filed under the

requirements in La. C.C.P. art. 966. Conversely, Respondents assert the motion for

summary judgment was untimely because it violated the parties’ prior scheduling

order set in accordance with the May 6, 2024 trial date. We find Respondents

argument unpersuasive.

The governing codal provisions for the filing and opposing of motions for

summary judgment are found in subparagraphs (B)(1)-(B)(3) of La. C.C.P. art.

966. Reed v. Restorative Home Health Care, LLC, 2019-01974, p. 1 (La. 2/26/20),

289 So.3d 1028 (citation omitted). Although a trial court and parties may enter

scheduling orders to establish different deadlines, an order “may not shorten the

period of time allowed for a party to file or oppose a motion for summary
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judgment… .” Id. (quoting La. C.C.P. art. 966 Official Revision Comments 2015.).

Our Supreme Court has instructed that when a continuance is granted, the filing

deadlines are reset. See Reed, 2019-01974, p. 1, 289 So.3d at 1028. Although the

trial court reset the trial date to July 22, 2024, the record does not indicate whether

the filing delays were maintained or reset. Respondents timely filed their motion

for summary judgment in accordance with La. C.C.P. art. 966(B)(1) on May 15,

2024 – more than sixty-five days before the new trial date.1 Thus, the trial court

erred in granting Respondents motion to strike finding Relator’s motion for

summary judgment untimely. Accordingly, we reverse the trial court’s judgment

and remand the matter for the trial court to consider Relator’s motion for summary

judgment.

Decree

Based on the foregoing, the trial court’s July 2, 2024 judgment is reversed

and this matter is remanded to the trial court for further proceedings consistent

with this opinion.

WRIT GRANTED;
JUDGMENT REVERSED;
STAY DENIED;
REMANDED WITH INSTRUCTIONS

1 La. C.C.P. art. 966(B)(1) provides,

B. Unless extended by the court and agreed to by all of the parties, a motion for
summary judgment shall be filed, opposed, or replied to in accordance with the
following provisions:

(1) Except for any document provided for under Subsubparagraph
(A)(4)(b) of this Article, a motion for summary judgment and all
documents in support of the motion shall be filed and served on all parties
in accordance with Article 1313(A)(4) not less than sixty-five days prior
to the trial.

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