Jose Hernandez-Reyes Versus All-Pro Roofers, Inc., Marcelino Canales, & Kenneth Westcott

JOSE HERNANDEZ-REYES NO. 22-CA-509

VERSUS FIFTH CIRCUIT

ALL-PRO ROOFERS, INC., MARCELINO COURT OF APPEAL
CANALES, & KENNETH WESTCOTT
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 796-525, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

May 24, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Cornelius E. Regan, Pro Tempore

REVERSED AND REMANDED
MEJ
RAC
CER

COUNSEL FOR PLAINTIFF/APPELLANT,
JOSE HERNANDEZ-REYES
Joseph S. Piacun

COUNSEL FOR DEFENDANT/APPELLEE,
KENNETH WESTCOTT
David H. Kennedy

JOHNSON, J.

Plaintiff/Appellant, Jose Hernandez-Reyes, appeals the summary judgment

that dismissed his claims against Defendant/Appellee, Kenneth Westcott, from the

24th Judicial District Court, Division “I”. For the following reasons, we reverse the

summary judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 21, 2019, Mr. Reyes filed a petition for damages against

defendants, All-Pro Roofers, Inc., Marcelino Canales, and Kenneth Westcott,

jointly, severally, and in solido. In his petition, Mr. Reyes alleged that he was

performing roofing services at Mr. Westcott’s home in Slidell, Louisiana on June

27, 2018. He further alleged that he slipped and fell from the roof to the ground

due to a damp and slippery plastic covering that had been placed by or on behalf of

the defendants over an area to be re-shingled. As a result of the incident, Mr.

Reyes asserted that he sustained injuries to his head and lumbar spine, which

included the exacerbation of prior unknown asymptomatic conditions and injuries

to his mental psyche.

Mr. Westcott filed a motion for summary judgment on December 20, 2021.

In his motion, Mr. Westcott asserted that Mr. Reyes could not meet his burden of

proof for any proposed theory of liability against him. He contended that there was

insufficient evidence of any defect in the roof, roofing work, or roofing materials.

He further contended there were no allegations of any relationship to or between

him and Mr. Reyes that would impose liability upon him for said incident. Mr.

Westcott maintained that the evidence proved he never met or had any dealings

with Mr. Reyes, and he had no control over the way Mr. Reyes performed his tasks

at any relevant time.

In opposition, Mr. Reyes argued that Mr. Westcott’s motion for summary

judgment was premature because significant discovery was outstanding. He also

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argued that Mr. Westcott was heavily involved in the repair work being done to his

roof. Mr. Reyes asserted that he was caused to fall from the roof by a damp,

slippery tarp that had been placed by or on behalf of Mr. Westcott; thus, a genuine

issue of material fact remained as to Mr. Westcott’s actual control over the parties

involved while the roofing project was being performed.

Mr. Westcott’s motion for summary judgment was heard by the trial court

on June 1, 2022. At the conclusion of the hearing, the trial court granted summary

judgment in favor of Mr. Westcott. The trial judge orally reasoned that Mr. Reyes

failed to establish that Mr. Westcott acted as a statutory employer on the project.

A written judgment was rendered on June 14, 2022, dismissing Mr. Reyes’ claims

against Mr. Westcott with prejudice. The instant appeal followed.

ASSIGNMENTS OF ERROR1

On appeal, Mr. Reyes alleges that the trial court erroneously granted

summary judgment in favor of Mr. Westcott by: 1) considering grounds that were

not raised in Mr. Westcott’s motion for summary judgment; 2) applying an

affirmative defense that was not pleaded by Mr. Westcott; 3) finding that he failed

to establish that Mr. Westcott acted as a statutory employer; and 4) granting the

motion, despite the existence of remaining genuine issues of material fact.

LAW AND ANALYSIS

General Summary Judgment Law

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action and is favored. La. C.C.P. art.

966(A)(2). Appellate courts review summary judgments de novo under the same

criteria that govern the trial court’s consideration of whether summary judgment is

appropriate. Jefferson Par. Sch. Bd. v. TimBrian, LLC, 21-67 (La. App. 5 Cir.

10/20/21), --- So.3d ---, 2021WL4891089, writ denied, 21-1725 (La. 1/12/22), 330

1
The assignments of error are interrelated and will be discussed together.

22-CA-509 2

So.3d 629, citing Stogner v. Ochsner Clinic Foundation, 18-96 (La. App. 5 Cir.

9/19/18), 254 So.3d 1254, 1257. Summary judgment shall be granted “if the

motion, memorandum, and supporting documents shows that there is no genuine

issue as to material fact and that the mover is entitled to judgment as a matter of

law.” Id., quoting La. C.C.P. art. 966(A)(3).

A material fact is one that potentially insures or prevents recovery, affects a

litigant’s ultimate success, or determines the outcome of the lawsuit. Populis v.

State Department of Transportation and Development, 16-655 (La. App. 5 Cir.

5/31/17), 222 So.3d 975, 980, quoting Pouncy v. Winn-Dixie La., Inc., 15-189 (La.

App. 5 Cir. 10/28/15), 178 So.3d 603, 605. An issue is genuine if it is such that

reasonable persons could disagree. If only one conclusion could be reached by

reasonable persons, summary judgment is appropriate as there is no need for trial

on that issue. Id. Whether a particular fact in dispute is material for purposes of

summary judgment can only be determined in light of the substantive law

applicable to the case. Stogner, 254 So.3d at 1257, citing Jackson v. City of New

Orleans, 12-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied, 574 U.S 869,

135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

The party moving for summary judgment bears the burden of proof.

Stogner, supra, citing La. C.C.P. art. 966(D)(1). However, if the mover will not

bear the burden of proof at trial, the moving party must only point out that there is

an absence of factual support for one or more elements essential to the adverse

party’s claims. Id. Thereafter, the burden shifts to the adverse party to produce

factual support sufficient to establish that he will be able to satisfy his evidentiary

burden of proof at trial. Id. If the adverse party fails to meet this burden, there is

no genuine issue of material fact, and the mover is entitled to summary judgment

as a matter of law. Id. Once the motion for summary judgment has been properly

supported by the moving party, the failure of the adverse party to produce evidence

22-CA-509 3

of a material factual dispute mandates the granting of the motion. Id., citing Babin

v. Winn Dixie La., Inc., 00-78 (La. 6/30/00), 764 So.2d 37, 40. The decision as to

the propriety to grant a motion for summary judgment must be made with

reference to the substantive law applicable to the case. Vincent v. Nat’l Gen. Ins.

Co., 21-227 (La. App. 5 Cir. 10/13/21), 330 So.3d 378, 381.

Arguments Raised in Motion for Summary Judgment and Affirmative Defense

Mr. Reyes alleges that the trial court erred as a matter of law in granting

summary judgment based upon grounds that were not raised by Mr. Westcott in his

motion for summary judgment. He argues that the trial court granted Mr.

Westcott’s motion solely on the finding that he failed to prove statutory

employment, despite no party raised the issue of whether Mr. Westcott was a

statutory employer. He contends that the trial court exceeded its authority under

La. C.C.P. art. 966(F) by entering its judgment on that basis. Mr. Reyes further

argues that Mr. Westcott waived the statutory employer defense because he did not

plead it as an affirmative defense in his Answer.

Mr. Westcott avers he has never alleged that he was an employer of Mr.

Reyes. However, he contends that Mr. Reyes cannot meet his burden of proof

under any proposed theory of liability.

In this matter, both parties agree that Mr. Westcott was not the statutory

employer of Mr. Reyes, despite the trial court’s rationale for granting the summary

judgment. However, because appellate courts review summary judgments de novo

under the same criteria that govern the trial court’s consideration of whether

summary judgment is appropriate, the trial judge’s reason for granting the

summary judgment is inconsequential to our de novo review. See Caminita for

and on Behalf of Caminita v. Roman Catholic Church of Archdiocese of New

Orleans, 20-54 (La. App. 5 Cir. 7/8/20), 299 So.3d 1269, 1271. Accordingly, we

22-CA-509 4

will now consider whether summary judgment is appropriate in this matter.

General Negligence Claim and Genuine Issues of Material Fact

Mr. Reyes alleges that the trial court erred in dismissing his claims against

Mr. Westcott through summary judgment. He argues that the trial court found Mr.

Westcott was not his statutory employer; and as such, he still maintains a right to

bring a general negligence claim against Mr. Westcott as his non-statutory

employer. He further argues that there are many significant genuine issues of

material fact regarding Mr. Westcott’s true involvement and control over the

roofing project at his home. Mr. Reyes contends that every purported fact raised

and relied upon by Mr. Westcott in his motion is either hotly contested or refuted

by All-Pro Roofers, Inc. and Mr. Canales. He also contends that, while Mr.

Westcott may be able to prove at trial that he was not solely at fault, at a minimum,

Mr. Westcott bears some responsibility for the incident and his resulting injuries.

Mr. Westcott again avers that Mr. Reyes cannot meet his burden of proof

under any proposed theory of liability. He maintains that, despite Mr. Reyes’

attempts to create an issue, there is simply no evidence to support the belief that he

was the employer of Mr. Reyes. Mr. Westcott avers there are no facts alleged that

have any probative value on any theory of negligence concerning him, and Mr.

Reyes only provides speculation and conjecture. He maintains that there is no

evidence he had any direction or control over the paper placed by Mr. Reyes and

his co-workers.

Here, Mr. Reyes filed a negligence action against Mr. Westcott for the

alleged injuries he sustained as a result of the June 27, 2018 incident. In order to

prove a claim under the duty-risk analysis pursuant to La. C.C. art. 2315, the

plaintiff must satisfy five elements: (1) the defendant had a duty to conform his or

her conduct to a specific standard of care (the duty element); (2) the defendant

failed to conform his or her conduct to the appropriate standard of care (the breach

22-CA-509 5

of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of

the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard

conduct was a legal cause of the plaintiff’s injuries (the scope of protection

argument); and (5) actual damages (the damages element). Smith v. Great Am. Ins.

Co., 20-377 (La. App. 5 Cir. 5/26/21), 325 So.3d 495, 498.

Questions of causation are usually issues for the factfinder’s determination;

but, it is possible to determine these issues on summary judgment, if reasonable

minds could not differ. Cunningham v. Northland Ins. Co., 00-888 (La. App. 5

Cir. 9/14/00), 769 So.2d 689, 694, writ denied, 00-2844 (La. 12/8/00), 776 So.2d

470. The issue of cause-in-fact is generally a “but for” inquiry such that if the

plaintiff probably would have not sustained the injuries but for the defendant’s

substandard conduct, the conduct is a cause-in-fact. Lahare v. Valentine Mech.

Servs. LLC, 17-289 (La. App. 5 Cir. 6/29/17), 223 So.3d 773, 778, citing Roberts

v. Benoit, 605 So.2d 1032, 1042 (La. 1991).

In this case, Mr. Westcott attached Mr. Reyes’ answers to interrogatories

and excerpts of his deposition to support the motion for summary judgment. Mr.

Reyes stated in his answers that he was working under the direction of All-Pro

Roofers, Inc., Michael Cerniglia, and Mr. Westcott, and he had been working on

that job for two days at the time of the incident. He also stated that he slipped and

fell as a result of the slipperiness and defective condition of the roof and the

materials.

In his deposition, Mr. Reyes testified that he and his co-workers were

carrying packets of shingles weighing 75 lbs. each up the roof. He was not

wearing a harness, safety tether, or rope at the time of the incident because there

were not any at the home. Mr. Reyes explained that, as he was placing the packet

down, he slipped on the paper he and his co-workers had put down the day before.

He believed that he slipped because someone ordered synthetic paper that was

22-CA-509 6

smooth, instead of the rougher paper they would normally use for that type of job.

Mr. Reyes stated that “the person who was in charge there” drove him to the job

that day, and he did not speak to the homeowners.

Among the evidence presented to support his opposition to Mr. Westcott’s

motion for summary judgment, Mr. Reyes attached the affidavits2 of Marcelino

Canales and Michael Cerniglia3 and Mr. Westcott’s answers to interrogatories. In

the affidavit of Mr. Canales, he stated that he was contacted by Michael Cerniglia

with All-Pro Roofers, Inc. regarding a roofing project where the homeowner, Mr.

Westcott, wanted the roofing solar panels and roof removed and replaced. Mr.

Cerniglia informed Mr. Canales that the homeowner was in charge of the job and

would inform everyone of their duties. Mr. Canales stated that he personally met

with Mr. Westcott, who confirmed that he was in charge of the roofing project at

his home.

In the affidavit of Mr. Cerniglia, he stated that All-Pro Roofers, Inc. did not

complete the roofing job at Mr. Westcott’s home; rather, Mr. Canales’ employees

completed the job. He further stated that no one from All-Pro Roofers, Inc. placed

a slippery covering on Mr. Westcott’s roof.

After review, we find that there are genuine issues of material fact remaining

in this matter. We conclude that the evidence presented for summary judgment

purposes creates issues of whether Mr. Westcott owed a duty to Mr. Reyes through

his control of the roofing project, and whether Mr. Westcott ordered unreasonably

dangerous paper for the project that caused Mr. Reyes’ damages. Therefore, we

2
In a reply memorandum, Mr. Westcott argued that, because a continuance was previously
granted for the purpose of allowing the taking of depositions, the affidavits should not have been allowed,
and he requested that the affidavits be stricken. La. C.C.P. art. 966(4) states, “[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.”
Because the Article allows for the submission of affidavits, we will consider the affidavits of Mr.
Cerniglia and Mr. Canales for summary judgment purposes.
3
According to his affidavit, Michael Cerniglia is the owner of All-Pro Roofers, Inc.

22-CA-509 7

find that Mr. Westcott is not entitled to summary judgment in his favor.

DECREE

For the foregoing reasons, we find there are remaining genuine issues of

material fact, reverse the trial court’s grant of the summary judgment in favor of

Kenneth Westcott, and remand the matter for further proceedings. Mr. Westcott is

assessed the costs of this appeal.

REVERSED AND REMANDED

22-CA-509 8

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 24, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-CA-509
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
JOSEPH S. PIACUN (APPELLANT) DAVID H. KENNEDY (APPELLEE)

MAILED
CHRISTOPHER P. LAWLER (APPELLANT) LAURIE W. MASCHEK (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW
1340 POYDRAS STREET 1350 GAUSE BOULEVARD WEST
SUITE 2100 SLIDELL, LA 70460
NEW ORLEANS, LA 70112