Howard Hebert v. Bill-Wood Limited Liability Company, D/B/A Billeaud Planters, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

03-758

HOWARD HEBERT

VERSUS

BILL-WOOD LIMITED LIABILITY COMPANY,
d/b/a BILLEAUD PLANTERS, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2001-5311
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE
**********

GLENN B. GREMILLION
JUDGE

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Court composed of Billie Colombaro Woodard, Glenn B. Gremillion, and Elizabeth
A. Pickett, Judges.

JUDGMENT VACATED AND REMANDED.

J. Minos Simon, Ltd.
J. Minos Simon
P. O. Drawer 52116
Lafayette, LA 70505-2116
(337) 233-4625
Counsel for Plaintiff/Appellant
Howard Hebert

Ward Lafleur
Mahtook & Lafleur, L.L.C.
P. O. Box 3089
Lafayette, LA 70502-3089
(337) 266-2189
Counsel for Defendants/Appellees
Scottsdale Insurance Company
Bill-Wood Limited Liability Company

Robert A. Mahtook, Jr.
Mahtook & LaFleur, L.L.C.
P. O. Box 3089
Lafayette, LA 70502-3089
(337) 266-2189
Counsel for Defendants/Appellees
Scottsdale Insurance Company
Bill-Wood Limited Liability Company

Robert Leyton Odinet
Mahtook & LaFleur, L.L.C.
P. O. Box 3089
Lafayette, LA 70502-3089
(337) 266-2189
Counsel for Defendants/Appellees
Scottsdale Insurance Company
Bill-Wood Limited Liability Company

Brenda Brown Maturin
Mahtook & Lafleur, L.L.C.
P. O. Box 3089
Lafayette, LA 70502-3089
(337) 266-2189
Counsel for Defendants/Appellees
Scottsdale Insurance Company
Bill-Wood Limited Liability Company

GREMILLION, Judge.

The plaintiff, Howard Hebert, appeals the judgment of the trial court

granting a motion for summary judgment in favor of the defendants, Bill-Wood,

Limited Liability Company, d/b/a Billeaud Planters, Inc., and its insurer, Scottsdale

Insurance Company (collectively referred to as Bill-Wood), and dismissing his claim

with prejudice. For the following reasons, we vacate the judgment and remand for

further proceedings.

FACTS

Hebert, a delivery man for United Parcel Service, was called to pickup

several packages at an office complex located at 1405 W. Pinhook Road, Lafayette,

Louisiana, on May 9, 2001. His next delivery was to the Chateau Lafayette

Apartments, located adjacent to the office complex. Hebert drove his delivery truck

to that portion of the parking lot adjacent to the apartment complex. The parking lot

of the office complex was separated from the apartment complex’s parking lot by a

grassy strip of land measuring approximately two feet. Hebert stepped out of the

passenger-side door of his truck carrying two small packages. As he attempted to

traverse the strip of land, he stepped into a hole, fell, and fractured his right leg.

As a result of this accident, Hebert filed suit against Bill-Wood Limited

Liability Company d/b/a Billeaud Planters, Inc. and its liability insurer, Scottsdale

Insurance Company. After answering the petition, Bill-Wood filed a Motion for

Summary Judgment seeking dismissal of Hebert’s claim. In response, Hebert filed an

Exception of No Cause of Action alleging that Bill-Wood’s motion for summary

judgment did not contain any allegations of fact showing that there was no genuine

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issue of material fact. Thereafter, Bill-Wood filed a Motion to Strike this exception

and filed a Supplement to Motion for Summary Judgment, to which it attached various

exhibits. Following a hearing on Hebert’s exception of no cause of action, the trial

court rendered a judgment denying the exception, casting him with all costs of filing

his exception and Bill-Wood’s motion. Bill-Wood later filed a Second Supplement

to Motion for Summary Judgment. This matter proceeded to a hearing on the motion

for summary judgment. Subsequently, the trial court granted summary judgment in

favor of Bill-Wood and dismissed Hebert’s claim against it with prejudice. Judgment

was rendered in this matter on January 29, 2003. This appeal by Hebert followed.

ISSUES

On appeal, Hebert raises two assignments of error. He argues that the

trial court erred in denying his exception of no cause of action, which excepted to Bill-

Wood’s failure to include factual allegations in its motion for summary judgment. He

further argues that the trial court erred in granting the summary judgment based upon

an untimely affidavit, which contained improper subjective determinations of fact.

SUMMARY JUDGMENT

The standard of review in summary judgment cases is well settled, as is

the fact that summary judgment is now favored. La.Code Civ.P. art. 966. Pursuant

to Article 966(B), a party seeking summary judgment shall serve its motion and any

supporting affidavits on the opposing party at least ten days prior to the hearing on the

motion. The adverse party may serve its opposing affidavits and memorandum in

support at least four days prior to the hearing. Summary judgment shall be rendered

if the “pleadings, depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show that there is no genuine issue of material fact,

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

966(B). The threshold question on appeal is whether a genuine issue of material fact

remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ

denied, 98-0050 (La. 3/13/98), 712 So.2d 882.

FAILURE TO COMPLY

In his first assignment of error, Hebert argues that the trial court erred in

denying his exception of no cause of action, which excepted to Bill-Wood’s failure

to include factual allegations in its motion for summary judgment.

After reviewing the record, we find that this was not the proper

procedural device for contesting Bill-Wood’s alleged failure. A peremptory

exception of no cause of action tests the legal sufficiency of the petition to determine,

whether under the allegations of the petition, the law affords a remedy to the plaintiff.

Crochet v. Cisco Systems, Inc., 02-1357 (La.App. 3 Cir. 5/28/03), 847 So.2d 253, writ

denied, 03-1838 (La. 10/17/03), 855 So.2d 765. In evaluating the exception, the trial

court accepts the well-pleaded allegations of fact as true, and the issue at the hearing

on the exception is whether, on the face of the petition, the plaintiff is legally entitled

to the relief sought. Id. In this instance, we find that a motion to strike would have

been the proper device to attack Bill-Wood’s motion for summary judgment.

Nevertheless, the trial court correctly denied Hebert’s exception since we

find that Bill-Wood’s motion sufficiently complied with La.Code Civ.P. art. 966,

since it attached its memorandum to the motion. “The written motion for summary

judgment is a ‘pleading’ under La. C.C.P. art. 852; and written documents may be

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attached to pleadings and made a part thereof for all purposes. La. C.C.P. art. 853;

Anderson v. Allstate Ins. Co., 93-1102 (La.App. 1 Cir. 4/8/94), 642 So.2d 208, 213 (on

rehearing), writ denied, 94-2400 (La. 11/29/94), 646 So.2d 404.” Arnette v. NPC

Servs. Inc., 00-1776, p. 5 (La.App. 1 Cir. 2/15/02), 808 So.2d 798, 801. Moreover,

in Frisard v. Autin , 98-2637, pp. 5-6 (La. 1 Cir. 12/28/99), 747 So.2d 813, 817-18,

writ denied, 00-0126 (La. 3/17/00), 756 So.2d 1145, the court stated:

In this case, the Ulmers did not attach their supporting documentation as
exhibits to their motion for partial summary judgment. However, in the
motion, the Ulmers stated, “In support of their Motion for Partial
Summary Judgment, intervenors submit their Memorandum in Support
of Motion for Partial Summary Judgment, with the exhibits attached
thereto, filed contemporaneously herewith, as though copied herein
in extenso.” (Emphasis added.) We interpret this language as the
incorporation of both the supporting memorandum and the attached
exhibits into the Ulmers’ motion for partial summary judgment, and we
conclude this language is the functional equivalent of attaching the
memorandum and exhibits to the motion.

Although Bill-Wood did not use the all inclusive language found in

Frisard, we still find that it attached its memorandum to its motion for summary

judgment. To hold otherwise, would, as stated by the supreme court, undermine “the

use of summary judgment to ‘secure the just, speedy, and inexpensive determination

of every action.’” Aydell v. Sterns, 98-3135, p. 1 (La. 2/26/99), 731 So.2d 189, 190.

Furthermore, Bill-Wood twice supplemented its motion for summary judgment prior

to the hearing on the motion.

Accordingly, we affirm the trial court’s denial of Hebert’s exception of

no cause of action.

ACTION OF TRIAL COURT

In his second assignment of error, Hebert argues that he was untimely

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served with Bill-Wood’s Second Supplement to Motion for Summary Judgment and

its supporting affidavit. He further argues that the trial court relied on this untimely

affidavit in finding that the hole at issue was not unreasonably dangerous and that

Bill-Wood had no notice or knowledge of the hole.

Hebert claims that Bill-Wood filed its Second Supplement to Motion for

Summary Judgment on January 21, 2003, but that he was not served with a copy of

the supplement until January 23, 2003, four days prior to the hearing on January 27,

2003, in contravention of La.Code Civ.P. 966(B). At the hearing on the exception,

counsel for Bill-Wood stated that a copy of the supplement, including an attached

affidavit by James L. Plumley, Jr., was hand delivered to both the trial court and

counsel for Hebert on January 17, 2003, as stated in the motion’s certificate of service.

He further stated that a copy of its Reply to Plaintiff’s Opposition to Motion for

Summary Judgment, including an attached affidavit by Kevin Vincent, was hand

delivered to Hebert’s counsel four days prior to January 27, 2003. After listening to

argument, the trial court held that the supplement was timely filed pursuant to

La.Code Civ.P. art. 966, accepting the testimony of Bill-Wood’s counsel that the

supplement was hand-delivered on January 17, 2003. It further stated that Bill-Wood

complied with service upon Hebert as required by La.Code Civ.P. arts. 966 and 1313.

We agree with the trial court.

A motion for summary judgment requires an appearance or an answer

and, thus, mandates service by a sheriff. Clark v. Favalora, 98-1802 (La.App. 1 Cir.

9/24/99), 745 So.2d 666. However, in this instance, the hearing date was already set

by the original motion for summary judgment, of which Hebert was aware. Rather

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than continue the hearing and reschedule it to conform with La.Code Civ.P. art. 966,

the trial court overruled Hebert’s objection and admitted the supplement and its

attached affidavit. Moreover, as pointed out by Bill-Wood, Vincent’s affidavit was

filed in response to Hebert’s opposition to its motion and La.Code Civ.P. art. 966(B)

is silent as to reply memoranda or exhibits. Thus, we find that the trial court did not

err in finding that Bill-Woods second supplement to its original motion for summary

judgment was properly served and in allowing both of the questioned affidavits into

evidence. We agree with this finding since it furthers the goals of judicial efficiency

and economy.

Next, Hebert argues that the trial court erred in finding that the hole at

issue was not unreasonably dangerous and that Bill-Wood had no notice or knowledge

of its condition. He claims that the trial court relied on Plumley’s affidavit, which he

alleges contains conclusions of law pertaining to subjective facts. T h e

jurisprudence pertaining to Hebert’s claim was laid out by this court in LeJeune v.

Riviana Foods, 97-1091, pp. 2-4 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1039-40,

writ denied, 98-0749 (La. 5/1/98), 718 So.2d 418:

When an individual is injured as a result of an unreasonably
dangerous condition existing on a landowner’s property, he can recover
damages relying on either La.Civ.Code art. 2315, which is the basis of
general negligence liability, or La.Civ.Code art. 2317, which provides
for a strict liability theory of recovery. Owners and occupiers of land
have a duty to discover any unreasonably dangerous conditions existing
on their premises and to either correct those conditions or warn victims
of their existence. Silliker v. St. Landry Parish Police Jury, 520 So.2d
880 (La.App. 3 Cir.1987).

The difference in proof between a negligence claim based on
La.Civ.Code art. 2315 and a strict liability claim resting on La.Civ.Code
art. 2317 is that Article 2315 requires that plaintiff show the owner, or
person in custody of the premises, either knew or should have known of

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the risk, whereas Article 2317 relieves plaintiff from having to prove
defendant’s scienter. Finley v. State Farm Insurance Co., 598 So.2d 537
(La.App. 1 Cir.1992). However, under either liability theory, plaintiff
first has the burden of proving: (1) the property which caused the
damage was in the custody of the defendant; (2) the property was
defective because it had a condition that created an unreasonable risk of
harm to persons on the premises; and, (3) the defect in the property was
a cause-in-fact of the resulting injury. Morell v. City of Breaux Bridge,
94-1378 (La.App. 3 Cir. 5/31/95), 660 So.2d 882.

Property owners are not insurers of the safety of visitors, but only
owe a duty to keep their premises in a safe condition for use in a manner
consistent with the purposes for which the premises are intended. David
v. Reon, 520 So.2d 820 (La.App. 3 Cir.1987), writ denied, 522 So.2d 564
(La.1988). Furthermore, not every minor imperfection or irregularity
will give rise to strict liability. The defect must be of such a nature to
constitute a dangerous condition, which would reasonably be expected
to cause injury to a prudent person using ordinary care under the
circumstances. Koppie v. Commercial Union Insurance Company, 478
So.2d 179 (La.App. 3 Cir.), writ denied, 479 So.2d 922 (La.1985). In
other words, the owner of the premises cannot be held responsible for
any risk posed by his property, only those presenting an unreasonable
risk of harm to others. David, 520 So.2d 820. In determining whether
a given condition is unreasonably dangerous, the degree to which the
danger may be observed by a potential victim who may then provide
self-protection is a major factor. Silliker, 520 So.2d 880.

In support of its motion, Bill-Wood introduced the affidavit of Plumley,

the president of Billeaud Planters, Inc. In his affidavit, he stated that he is personally

familiar with the grounds and building located at 1405 W. Pinhook Road, that

Billeaud Planters, Inc. had no knowledge of any holes in the grassy area of 1405 W.

Pinhook Road, and that no one had ever informed it of any holes at that location either

before or after May 9, 2001. It further introduced the deposition of Hebert, in which

he testified that he never saw the hole prior to falling, that he did not notice it

afterwards, and that the hole was deep enough to cover his ankle. He further stated,

“[J]ust by looking at the grassy area, you can’t see a hole. It’s fully covered with

grass.”

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In opposition to the motion, Hebert introduced Vincent’s affidavit, in

which he stated that he was hired by Plumley in September 1994, to provide lawn

maintenance for 1405 W. Pinhook Road, which he provided continuously through

May 6, 2001. He further stated that, during his maintenance of the grounds, he was

aware of the hole in the grassy area between the parking lot of that location and that

of Chateau Lafayette Apartments, and he positively identified the hole as that causing

Hebert’s injury. Hebert further introduced Bill-Wood’s answer to his second set of

interrogatories, which stated that the grounds of 1405 W. Pinhook Road were mowed

by Vincent’s Lawn Care on May 6, 2001, three days prior to his accident.

In response to Hebert’s opposition, Bill-Wood also introduced an

affidavit by Vincent, in which he stated that he was hired as an independent contractor

by Billeaud Planters, Inc., that he was never employed directly or indirectly by it, and,

that, although he was aware of the grassy hole, neither he nor any of his employees

reported the hole to Billeaud Planters, Inc.

In rendering its oral reasons, the trial court stated:

Concerning, first of all, the issue of whether or not the hole was
an unreasonably dangerous condition, looking at the photographs which
are introduced into evidence, the court finds that hole to be one that is
very common in any grassy area in southwest Louisiana, not a very deep
hole or a very large hole or a very dangerous hole and the court finds the
hole not to be unreasonably dangerous. That’s the first point, but in
addition, the court finds that the defendant had no notice of the condition
and for those reasons and also reasons cited by the court in Alexander
versus City of Lafayette [584 So.2d 327 (La.App. 3 Cir. 1991)] which
would only be repetitive for me to go through – that portion has just been
cited by defendant – that, of course, unless it’s a sidewalk, everything
can’t be in perfect tabletop condition, and this is the life that we have and
that we’re leading, so it doesn’t make it unreasonably dangerous if it’s
not, and then you have the additional situation of no notice or knowledge
by the defendants. So the court will grant the motion for summary
judgment.

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After reviewing the record, we find that the trial court erred in granting

summary judgment in favor of Bill-Wood. In Brittain v. Family Care Services, Inc.,

34,787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460, the court stated:

Even though the summary judgment procedure is favored, it is not
a substitute for trial and is often inappropriate for judicial determination
of subjective facts such as motive, intent, good faith or knowledge. Oaks
v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263 (citing Greer
v. Dresser Industries, Inc., 98-129 (La.App. 3d Cir.7/1/98), 715 So.2d
1235). One reason is that these subjective facts call for credibility
evaluations and the weighing of testimony and summary judgment is
inappropriate for such determinations. Id. Moreover, it is not a function
of the trial court on a motion for summary judgment to determine or even
inquire into the merits of issues raised or to weigh conflicting evidence
on the existence of material facts. See, Harrison v. Parker, 31,844
(La.App.2d Cir.5/5/99), 737 So.2d 160. When affidavits and exhibits
present a choice of reasonable inferences, such inferences must be
viewed in the light most favorable to the party opposing the motion for
summary judgment. Tucker v. Northeast Louisiana Tree Service, 27,768
(La.App.2d Cir.12/6/95), 665 So.2d 672; Schroeder v. Bd. of Supervisors
of Louisiana State Univ., 591 So.2d 342 (La.1991).

See also Greer v. Dresser Indus., Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d

1235, writ denied, 98-2094 (La. 11/6/98), 728 So.2d 867. In this instance, the trial

court based its ruling, in part, on a finding that Bill-Wood did not have knowledge or

notice of the existence of the hole. This a judicial determination of a subjective fact,

for which jurisprudence has found summary judgment inappropriate.

The trial court further found that the hole did not present an unreasonably

dangerous condition, for which finding it relied on Alexander v. City of Lafayette, 584

So.2d 327 (La.App. 3 Cir. 1991). In Alexander, the plaintiff tripped over an exposed

tree root, which the court held, by itself, did not create an unreasonable risk of harm.

However, we find this case distinguishable from the present case, as the hole at issue

was not easily observable due to the grass growing inside it, as illustrated by the

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photographs. As stated above, “the degree to which the danger may be observed by

a potential victim who may then provide self-protection is a major factor,” in

determining whether a condition is considered unreasonably dangerous. LeJeune, 707

So.2d at 1038 (citing Silliker v. St. Landry Parish Police Jury, 520 So.2d 880

(La.App. 3 Cir. 1987).

Accordingly, we find that the trial court erred in granting summary

judgment in favor of Bill-Wood. The judgment of the trial court is vacated and the

matter is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is vacated and

the matter is remanded for further proceedings. The costs of this appeal are cast

twenty-five percent to the plaintiff-appellant, Howard Hebert, and seventy-five

percent to the defendants-appellees, Bill-Wood, Limited Liability Company, d/b/a

Billeaud Planters, Inc., and its insurer, Scottsdale Insurance Company.

JUDGMENT VACATED AND REMANDED.

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