Freelance Constructions, L.L.C. Versus Sharon Adams, Wife of and Ernest Adams

FREELANCE CONSTRUCTIONS, L.L.C. NO. 24-C-423

VERSUS FIFTH CIRCUIT

SHARON ADAMS, WIFE OF AND ERNEST COURT OF APPEAL
ADAMS
STATE OF LOUISIANA

October 25, 2024

Linda Wiseman
First Deputy Clerk

IN RE FREELANCE CONSRUCTION, L.L.C., IN ITS CAPACITY AS DEFENDANT-IN-RECONVENTION

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JACQUELINE F.
MALONEY, DIVISION "D", NUMBER 836-013

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.

WRIT GRANTED IN PART AND DENIED IN PART

The relator, Freelance Construction, L.L.C., seeks review of the August 22,

2024, trial court judgment that denied its motion for summary judgment to

“Dismiss the Reconventional Demand of Sharon Adams and Ernest Adams.” For

the following reasons, we grant this writ application in part and deny it in part.

FACTS

On December 19, 2022, the relator filed suit against the respondents, Sharon

and Ernest Adams, alleging that the parties entered into a “series of contracts” for

the relator to repair damages to the respondents’ home caused by Hurricane Ida.

The relator alleged that it completed most of the work outlined in the construction

contracts, but stopped working on respondents’ home because they failed to make

payments for work that had been completed. The relator asserts that the

respondents have only paid $85,000 of the $134,078.30 owed and, despite

amicable demand, the respondents have refused to pay the remaining $49,078.30

due for work under these contracts. The respondents filed an answer and a

reconventional demand, asserting they paid the relator $100,030.00 of the total

project cost of $134,078.30. The respondents further alleged that the relator

performed the work incorrectly and incompletely, citing as an example that the

kitchen cabinets were the wrong color and were installed incorrectly, and that the

relator has shown no interest in attempting to correct the mistakes or complete the

job. The respondents also sought damages for mental anguish due to being

displaced from their home “longer than necessary.”

On April 23, 2024, the relator filed a motion for summary judgment to

dismiss the reconventional demand, asserting there are no genuine issues of

material fact and that the respondents cannot produce sufficient factual support to

prove their claims. In support of its motion, the relator attached the respondents’

answer to the petition and a purported affidavit from Lance Arcement, who is the

sole member and manager of the relator, Freelance Construction, L.L.C. The court

set the motion for a contradictory hearing on June 18, 2024. On June 17, 2024, the

respondents filed a motion to continue the hearing on the motion for summary

judgment due to their prior attorney leaving the firm and a new attorney taking

over the case. The court granted the continuance and reset the hearing on the

motion for summary judgment to August 12, 2024. On August 9, 2024, the

respondents filed an opposition to the motion for summary judgment, arguing there

are several genuine issues of material fact precluding summary judgment on the

claims in their reconventional demand, and they attached photographs of some of

the work performed. On that same date, the relator filed a reply memorandum

asserting the respondents’ opposition was untimely and asking the court to strike it.

At the hearing on the motion, the relator argued the opposition should be

stricken and that the respondents forfeited their right to oral argument due to the

untimely filing of the opposition. The attorney for the respondents stated that he

had difficulty contacting his clients, causing the delayed opposition. The trial

court denied the motion to strike and allowed the respondents’ attorney to argue in

opposition to the motion for summary judgment. The relator’s attorney then

objected to the photographs attached to the opposition, arguing they were not

authenticated and were not proper summary judgment evidence under La. C.C.P.

art. 966. The court stated that it would allow the respondents’ counsel to discuss

the photographs and “make his argument.” After hearing the arguments for each

side, the trial court granted the summary judgment in part, dismissing the

respondents’ claim for attorney fees and costs, and denied the motion for summary

judgment as to the remainder of the claims in the reconventional demand. This

timely writ application followed.

UNTIMELY OPPOSITION

In its first argument in this writ application, the relator asserts that the trial

court erred in considering the respondents’ untimely-filed opposition to the motion

for summary judgment. We agree.

According to La. C.C.P. art. 966B(2), an “opposition to the motion and all

documents in support of the opposition shall be filed and served in accordance with

Article 1313(A)(4) not less than fifteen days prior to the hearing on the motion.”

In the absence of consent by the parties, a trial court has no discretion to extend the

fifteen-day deadline for filing an opposition to a motion for summary judgment.

Auricchio v. Harriston, 20-01167 (La. 10/10/21), 332 So.3d 660, 661. A

continuance under La. C.C.P. art. 966(C)(2) “cannot serve as a pretext to

circumvent the deadlines set forth in La. C.C.P. art. 966(B)(2).” Mahe v. LCMC

Health Holdings L.L.C., 23-25 (La. 3/14/23), 357 So.3d 322.

In this case, the respondents’ opposition to the motion for summary

judgment was due fifteen days before the June 18, 2024, hearing. The continuance

granted by the trial court did not extend this deadline. The respondents did not file

their opposition memorandum until August 9, 2024, just three days prior to the

rescheduled hearing date. Accordingly, we find the trial court erred by considering

the untimely filed opposition to the motion for summary judgment, and we hereby

strike the opposition, including the attached photographs.

REVIEW OF SUMMARY JUDGMENT

Appellate courts review a motion for summary judgment de novo using the

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

judgment is appropriate. Varrecchio v. Lemoine Company, 23-603 (La. App. 5

Cir. 1/31/24), 381 So.3d 210, 214. The court should grant a motion for summary

judgment “if the motion, memorandum, and supporting documents show that there

is no genuine issue of material fact and that the mover is entitled to judgment as a

matter of law.” La. C.C.P. art. 966(A)(3). The party bringing the motion bears the

burden of proof; however, if the mover does 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 claim. La. C.C.P. art.

966(D)(1).

We now review the relator’s motion for summary judgment de novo, without

considering the respondents’ untimely filed opposition.

In its motion for summary judgment, the relator argues the respondents

cannot meet their burden of proof on the reconventional demand, because the facts

and evidence do not support the respondents’ claims. It contends the respondents

did not fulfill their obligations under the parties’ contracts and, thus, they have no

legal basis for their claims. In support of its motion for summary judgment, the

relator attached the respondents’ answer to the petition, as well as a purported

“affidavit” of Mr. Arcement. This document indicates that Freelance Construction,

L.L.C. substantially completed the work on the respondents’ home but stopped due

to the respondents’ refusal to make payments. It provides that, based on the

executed proposals, the work done, and the amount paid by the respondents, there

remains a balance due from the respondents of $49,078.30. However, this

“affidavit” is not signed by the affiant, Lance Arcement. An unsigned affidavit is

not admissible to support or oppose a motion for summary judgment. Simon v.

CenturyLink, Inc., 21-0412 (La. App. 1 Cir. 12/22/21), 340 So.3d 88. Thus, this

Court cannot consider the unsigned “affidavit” on de novo review.

The relator has not submitted any other documents or evidence to support its

motion for summary judgment. While the relator argues that the respondents did

not fulfill their obligations under the contracts, the respondents contend that the

relator performed the work incorrectly and did not attempt to correct the mistakes

or complete the job. Neither party has submitted any appropriate evidence to

support their claims, and genuine issues of material fact remain. As the mover on

the motion for summary judgment, the relator has not carried its burden of proving

that it is entitled to judgment as a matter of law. For this reason, we deny the

relator’s motion for summary judgment based on the showing made.

CONCLUSION

For the preceding reasons, we partially grant this writ, striking the

respondents’ untimely filed opposition. We partially deny the writ, finding that the

relator has not shown that it is entitled to summary judgment on the claims raised

in the respondents’ reconventional demand.

Gretna, Louisiana, this 25th day of October, 2024.

JJM
FHW
MEJ

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
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/25/2024 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

24-C-423
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Jacqueline F. Maloney (DISTRICT JUDGE)
Blake A. Altazan (Relator)
Dylan A. Thompson (Relator)

MAILED
Harry L. Cahill, III (Respondent) Peyton B. Burkhalter (Respondent) Kirk A. Patrick, III (Relator)
Attorney at Law Attorney at Law Attorney at Law
1100 9th Street 2540 Severn Avenue Post Office Box 1629
Gretna, LA 70053 Suite 129 Baton Rouge, LA 70821
Metairie, LA 70002