City of Alexandria v. Ratcliff Construction Company, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1200

CITY OF ALEXANDRIA

VERSUS

RATCLIFFE CONSTRUCTION COMPANY, LLC, ASHE BROUSSARD
WEINZETTE ARCHITECTS, LLP AND WITSELL EVANS &
RASCO, P.A.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, DOCKET NO. 235,509-A
HONORABLE DONALD T. JOHNSON, PRESIDING
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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Eugene J. Radcliffe
Montgomery, Barnett, L.L.P.
One American Place
301 Main Street, Suite 1170
Baton Rouge, LA 70825
(225) 329-2834
COUNSEL FOR PLAINTIFF/APPELLANT:
City of Alexandria

Albert Dale Clary
S. Brooke Barnett
LaToya D. Jordan
Long Law Firm, L.L.P.
4041 Essen Lane, Suite 500
Baton Rouge, LA 70809
(225) 922-5110
COUNSEL FOR DEFENDANTS/APPELLEES:
Ashe Broussard Weinzette Architects, LLP and Witsell Evans & Rasco, PA

COOKS, Judge.

This appeal is before this court as a result of the trial court‟s granting of

summary judgment in favor of appellees and dismissing appellant‟s claims against

appellees for damages from negligence allegedly resulting from a defective design.

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This suit involves the design and construction of the Coughlin Saunders

Performing Arts Center (hereafter the Center) located in Alexandria, Louisiana,

which opened in August of 2004. On June 29, 2009, the City of Alexandria filed

suit against Ratcliffe Construction Company, LLC, who built the Center. Also

named as defendants were the architects of the Center, Ashe Broussard Weinzettle

Architects, LLP and Witsell Evans & Rasco, PA (hereafter the Architects).

The City alleged that subsequent to the Center‟s completion, it “sustained

rainwater intrusion in several locations, through its masonry wall systems.” The

City contended the rainwater intrusion and corresponding damage was the direct

result of the defective workmanship of Ratcliffe Construction and the negligent

design of the Architects. The City requested damages and attorney fees.

After the damage was discovered, the Architects investigated the cause of

the rainwater intrusion and made recommendations for repair. The City then hired

a consultant, Quick & Associates, to inspect the building and determine the cause

of the rainwater intrusion and to assess the design and quality of workmanship.

On October 2, 2006, Quick & Associates issued a written report of its

findings. It concluded the leaks were a direct result of the faulty workmanship and

poor supervision by the masonry subcontractor and general contractor. Quick &

Associates also found that the design of the Center was in accordance with industry

standards.

Quick & Associates determined that repairs and remedial work would be

necessary in order to mitigate the damages and eliminate any rainwater intrusion in

the future. It was recommended that the original project architects prepare and

issue remedial drawings based on the original construction plans and details.

Despite the pending suit for damages, the Architects then prepared and issued

remedial drawings to the City.

Relying on the conclusions reached by Quick & Associates, the Architects

filed a motion for summary judgment contending there was no genuine issue

regarding the material fact that their design of the center met applicable industry

standards and was not defective. Additionally, the Architects asserted the City

could not recover attorney fees in any event, because neither the contract between

the parties nor a statute provided for the recovery of attorney fees.

The City opposed the motion for summary judgment, arguing it was

inappropriate at that stage of the litigation because adequate discovery had not yet

been conducted.

After a hearing on the motion, the trial court found summary judgment in

favor of the Architects was “warranted in this matter because the City‟s own

consultant and expert opined that the design of the Center was not defective.” The

trial court further found the summary judgment was not premature, noting the

Architects obtained an opinion letter from the City‟s expert stating that the design

of the Center was not defective, and the City failed to produce any expert

testimony and/or reports to the contrary. The trial court also found the City could

not recover attorney fees, because the contract did not provide for the recovery of

attorney fees in this matter. The City appealed the trial court‟s judgment, arguing

summary judgment was inappropriately granted.

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ANALYSIS

In Dinger v. Shea, 96-448, pp. 4-5 (La.App. 3 Cir. 12/11/96), 685 So.2d 485,

488-89, we set forth the standard of appellate review of summary judgments:

Appellate courts review summary judgments de novo under the
same criteria that govern the district court‟s consideration of whether
summary judgment is appropriate. Potter v. First Federal Sav. and
Loan Ass’n, 615 So.2d 318 (La.1993). A motion for summary
judgment is properly granted only if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits submitted, if any, show 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). A fact is “material” if its existence
potentially insures or precludes recovery, affects a litigant‟s ultimate
success, or determines the outcome of the relevant legal dispute.
Cormier v. Wise, 93-1434 (La.App. 3 Cir. 6/1/94), 638 So.2d 688. A
fact is “at issue” if there exists any reasonable doubt as to its
existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d
1036 (La.App. 3 Cir.1992).

....

In the past, any doubt regarding the existence of material facts
was to be resolved against granting the summary judgment, even if
grave doubts existed as to a party's ability to establish disputed facts at
trial. Penton [v. Clarkson, 93-657 (La.App. 1 Cir. 3/11/94) ], 633
So.2d 918. The amendment does not change the law regarding
burdens of proof, as the mover is still required to prove the absence of
a genuine issue and his entitlement to judgment. Short v. [Giffin ],
96-0361 (La.App. 4 Cir. 8/21/96); 682 So.2d 249; Walker v. Kroop,
96-0618 (La.App. 4 Cir. 7/24/96); 678 So.2d 580. However, it now
appears, based on the new language of section (C), that in order to
rebut a showing made by the mover of the non-existence of a genuine
issue of material fact, the nonmoving party will be held to a higher
standard of proof, i.e., a non-moving party must sufficiently establish
the existence of proof of an essential element of his claim on which he
is to bear the burden of proving at trial.

See also Townley v. City of Iowa, 97-493 (La.App. 3 Cir.
10/29/97), 702 So.2d 323.

This court in Weill Construction Co. v. Thibodeaux, 491 So.2d 166, 171

(La.App. 3 Cir. 1985), discussed what was necessary to attach liability to design

professionals, such as architects:

Architects are held liable for damages incurred by the owner by
whom they are employed when their plans and specifications are
faulty and defective as a result of their neglect in exercising care and
skill. In the absence of an express contractual provision to the

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contrary, an architect's obligation does not guarantee a perfect plan or
a satisfactory result. There is no assurance that miscalculations will
not occur. Liability is considered to rest only on unskillfulness or
negligence and not upon mere error of judgment. The ordinary care
and reasonable skill by virtue of which architects' preparations of
plans and specifications are to be evaluated in determining whether
they are guilty of negligence, must be the same care and skill required
by others engaged in the same profession in the same locality.
Maloney v. Oak Builders, Inc., 224 So.2d 161, 168 (La.App. 4th
Cir.1969), modified, 256 La. 85, 235 So.2d 386 (La.1970).

At trial, the party alleging liability on an architect must establish the local

prevailing standards for architectural compliance and prove a failure to meet this

standard through expert testimony. “Unless lay persons can infer negligence by

applying common sense standard, expert testimony is required to establish the

applicable standard of care. Failure to submit expert testimony to prove the

standard of care is a „fatal omission.‟” Greenhouse v. C.F. Kenner Associates Ltd.

Partnership, 98-496, p. 5 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1008, citing

Carter v. Deitz, 556 So.2d 842, 843 (La.App. 4 Cir.1990).

In this case, the Architects filed their Motion for Summary Judgment on the

grounds that the City‟s own expert, Quick & Associates, submitted a written report

concluding the Architects‟ design was not defective. The trial court then

specifically noted in its written reasons for judgment that “the City has not

produced any expert testimony and/or reports to the contrary.” Thus, due to this

“fatal omission” on the part of the City, the trial court granted the Architects‟

Motion for Summary Judgment. After reviewing the record, we find no error in

the trial court‟s grant of summary judgment.

The Architects‟ Motion for Summary Judgment set forth the absence of any

evidence in the record to establish any breach of the applicable standard of care.

The burden then shifted to the City to put forth some evidence to establish it could

satisfy its evidentiary burden at trial. In reviewing the City‟s Opposition to the

Architects‟ Motion for Summary Judgment, the City did not provide any

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supplemental expert report, expert testimony or expert affidavit to contradict that

of Quick & Associates that the Architects did not breach the applicable standard of

care.

The City also argues summary judgment was inappropriate because the

written report prepared by Quick & Associates was privileged communication

between the City‟s attorneys and its consultant (Quick & Associates) in preparation

for litigation, and should not have been submitted in support of the Architects‟

Motion for Summary Judgment. The trial court found the letter was not privileged.

We agree.

Pursuant to La.Code Civ.P. art. 1425(D)(1), “a party may, through

interrogatories, deposition, and a request for documents and tangible things,

discover facts known and opinions held by a person who has been identified as an

expert whose opinions may be presented at trial.” The plain wording of this statute

provides that an expert‟s conclusions are discoverable and not privileged. Further,

we note, as the trial court did, that the Quick report was given to the Architects by

the City. A fact the City acknowledges it did “as a courtesy.” Therefore, any

purported privilege, were it deemed to exist, was waived.

The City also alleged that it set forth “twenty-eight (28) issues outlined in

the City‟s certified discovery responses” which demonstrate genuine issues of

material fact that should have precluded summary judgment. The City further

argues the affidavit of its attorney details these alleged issues and satisfies its

burden of proof to establish it could satisfy its evidentiary burden of proof at trial.

We disagree. As set forth earlier, the City has failed to provide any expert opinion

establishing that the Architects did not comply with the applicable standard of care

in their design of the Center. The discovery responses and affidavit of its attorney,

who is not qualified as an expert regarding the standard of care applicable to

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architects, does not and cannot establish the standard of care and breach of that

standard in this case.

Finally, the City argues the granting of summary judgment was premature

because the trial court had not yet issued a Scheduling Order setting a cutoff date

for submission of its expert report. The City argues “requiring an expert report

merely because another party has filed a motion is improper.” We disagree.

This court in LeCroy v. Byrd Regional Hospital, 10-904, pp. 13-14 (La.App.

3 Cir. 4/30/08), 981 So.2d 897, 905-06, discussed a similar situation:

Louisiana Code of Civil Procedure Article 966(A)(1) provides
that a defendant is able to move for summary judgment “at any time.”
Further, La.Code Civ.P. art. 966(C)(1) provides that “[a]fter adequate
discovery or after a case is set for trial, a motion which shows that
there is no genuine issue as to material fact and that the mover is
entitled to judgment as a matter of law shall be granted.”

The provision for adequate discovery does not
grant a party an absolute right to delay a decision on a
motion for summary judgment until all discovery is
complete. West v. Watson, 35,278 (La.App. 2 Cir.
10/31/01), 799 So.2d 1189, writ denied, 01-3179
(La.2/8/02), 809 So.2d 140. Unless the party opposing
the motion for summary judgment shows a probable
injustice, a suit should not be delayed pending discovery
when it appears at an early stage that there are no genuine
issues of fact. Advance Products & Systems, Inc. v.
Simon, 06-609 (La.App. 3 Cir. 12/6/06), 944 So.2d 788,
writ denied, 07-26 (La.3/9/07), 949 So.2d 444. The
abuse of discretion standard is used to determine if the
trial court allowed adequate time for discovery. Id.

Prime Income Asset Mgmt., Inc. v. Tauzin, 07-1380, pp. 13-14
(La.App. 3 Cir. 4/30/08), 981 So.2d 897, 905-06.

We also note this Court‟s decision in Dupree v. Louisiana Medical Mutual

Insurance Co., 11-366, p. 2 (La.App. 3 Cir. 10/5/11), 74 So.3d 880, 882,

which also was a professional liability case, wherein we affirmed the trial

court‟s finding that the plaintiff‟s reliance on the scheduling order was held

to be a “misplaced strategic move.” Further, while a Scheduling Order was

not issued by the trial court, the City was ordered by the trial court on July 1,

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2010 to show cause why the Motion for Summary Judgment should not be

granted. The City failed to show cause by failing to meet its burden of

establishing it could satisfy its evidentiary burden at trial. Thus, the trial

court‟s grant of summary judgment was not premature.

DECREE

For the foregoing reasons, the judgment of the trial court granting the

Architects‟ Motion for Summary Judgment is affirmed. Costs of this appeal

are assessed to appellant, the City of Alexandria.

AFFIRMED.

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