Percival Franklin v. Enterprise Rent-A-Car Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-555

PERCIVAL FRANKLIN

VERSUS

ENTERPRISE RENT-A-CAR

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 75768
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, J. David Painter, and James T. Genovese,
Judges.

SUMMARY JUDGMENT AFFIRMED.
REMANDED FOR FURTHER PROCEEDINGS
AS TO CONTEMPT OF COURT.

Percival Franklin
P.O. Box 308
Baker, LA 70704
(225) 810-7490
PLAINTIFF: IN PROPER PERSON

Azelie Ziegler Shelby
Sarah K. Lunn
Nicholas M. Graphia
Shelby Law Firm
3070 Teddy Drive
Baton Rouge, LA 70809
(225) 223-6961
COUNSEL FOR PLAINTIFF/APPELLANT:
Percival Franklin
William J. Hamlin
Avery Lea Griffin
Hamlin & Griffin, LLC
P.O. Box 5429
Abita Springs, LA 70420

(985) 246-6001
COUNSEL FOR DEFENDANT:
Bridgestone Americas Tire Operations, LLC

Donna Powe Green
Green Law Firm, P.A.
32 Office Park Drive
Hattiesburg, MS 39404-7947
(601) 271-9031
COUNSEL FOR DEFENDANT/APPELLEE:
Enterprise Rent-A-Car

PAINTER, Judge.

Percival Franklin, in proper person, brought suit against Enterprise Rent-A-Car

and Bridgestone Americas Tire Operations, LLC. After she failed to timely respond

to requests for admissions of fact propounded by EAN Holdings, LLC (EAN), the

successor in interest to Enterprise Leasing Company of New Orleans and Enterprise

Rent-A-Car, those requests were deemed admitted, and EAN filed a motion for

summary judgment which was granted by the trial court. Franklin now appeals the

judgment dismissing all of her claims against EAN with prejudice. EAN answered

the appeal, seeking damages for frivolous appeal and seeking permission to enforce

the judgment awarding them costs during the pendency of this appeal since Franklin

did not file a suspensive appeal bond. EAN also sought to supplement the record and

to file a supplemental answer to appeal. Both of these matters were referred to the

merits of the appeal. For the following reasons, we affirm the trial court‟s grant of

summary judgment in favor of EAN. We deny EAN‟s claim for damages for

frivolous appeal but grant both EAN‟s motions to supplement the record and to file a

supplemental answer.

FACTS AND PROCEDURAL HISTORY

Percival Franklin rented a 2008 Kia Optima from Enterprise Leasing Company

of New Orleans on September 10, 2008. She maintained possession of the vehicle

until December 5, 2008, when she was involved in an accident on Interstate 10 near

milepost 125 in St. Martin Parish, Louisiana. Franklin alleged that defects in the rear

tire on the driver‟s side of her vehicle caused the accident. An attorney acting on

Franklin‟s behalf viewed and photographed the vehicle in March of 2009.

On December 1, 2009, Franklin, in proper person, filed suit in the form of a

single-sentence petition. Enterprise excepted on several grounds, and Franklin filed

an amended petition, again in proper person, on March 30, 2010. In that amended

petition, Franklin added Bridgestone as a defendant and added detailed claims against

Enterprise. The petition does not mention any rental agreement and makes no claims

sounding in contract against Enterprise. Bridgestone has answered the petition and

filed exceptions thereto. Franklin‟s claims against Bridgestone are not at issue in this

appeal.

Enterprise propounded requests for admissions of fact, interrogatories, and

requests for production of documents, as well as requests for medical authorizations,

to Franklin on or about April 16, 2010. On April 28, 2010, there was a motion to

enroll two attorneys as counsel of record for Franklin; however, these attorneys filed a

motion to withdraw from this representation on May 24, 2010. The judgment

allowing the withdrawal was not signed until May 26, 2011. However, it appears that

all pleadings filed with the trial court on Franklin‟s behalf (except the motion to

withdraw) were filed in proper person and not signed by any attorney.

The discovery requests went unanswered, and an order setting a motion to

compel, motion to deem requests for admissions admitted, and for sanctions was

signed on August 4, 2010. Following a hearing on September 9, 2010, where Franklin

appeared pro se, the trial court signed a judgment recognizing that the requests for

admissions of fact were deemed admitted and ordering Franklin to respond to

outstanding interrogatories and requests for production within fifteen days. The trial

court also ordered Franklin to pay sanctions in the amount of $500.00. On September

13, 2010, the trial court signed another judgment purporting to outline the facts which

were deemed admitted and ordering Franklin to respond to outstanding discovery

before noon on September 24, 2010. Otherwise, the September 13 judgment was the

same as the September 9 judgment.

On September 24, 2010, Franklin attempted to request an extension of time to

obtain an opinion from a tire expert; however, this attempt was not by formal

pleading. EAN filed a pleading objecting to the request for extension of time. By

order dated October 18, 2010, the trial court denied Franklin‟s request for extension of

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time to obtain an expert opinion. The order did grant Franklin until October 29, 2010,

to pay the $500.00 sanction. Then, on October 26, 2010, Franklin filed a formal

request for extension of time to obtain an opinion from a tire expert. By order dated

October 28, 2010, and signed by a duty judge, Franklin was given until December 22,

2010, to provide an opinion from a tire expert. EAN filed an immediate opposition.

On November 18, 2010, EAN filed a motion for summary judgment, motion to

clarify/reconsider October 28, 2010 order, and motion to assess fees, costs, and

expenses. By this time, Franklin had provided some responses to discovery. These

answers were introduced in support of the motion for summary judgment.

On November 21, 2010, Franklin sought to have an inspection of the vehicle

the next day. EAN alleges that the request could not be accommodated upon such

short notice. Franklin filed a motion for full vehicle access and extension of time for

visual inspection. EAN objected.

Attempts to serve Franklin with the motion for summary judgment, motion to

clarify/reconsider October 28, 2010 order, and motion to assess fees, costs, and

expenses were unsuccessful, and EAN was required to appoint a private process

server. Franklin was ultimately served, and the matter was set for hearing on

February 11, 2011. Franklin did file an opposition, including her own affidavit. EAN

alleged that the opposition was untimely and that Franklin‟s affidavit and attachments

were unauthenticated and constituted inadmissible hearsay.

The matter was continued due to an illness alleged by Franklin. The summary

judgment was finally heard on March 18, 2011. The trial court ordered the following

things to be stricken: Franklin‟s affidavit; the affidavit of Kenneth Lee; photocopies of

photographs; correspondence from Franklin‟s previous counsel; the accident report;

internet research article from ArticleSantch.com; pages from a blog entitled

“Enterprise Rent-A-Car is Failing Enterprise!”; unidentified “maintenance” manual

pages; MapQuest-type directions; a hotel bill; and vehicle bid forms. The trial court

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then granted the summary judgment in favor EAN dismissing all claims against it

with prejudice. The trial court also vacated its October 28, 2010 order granting

Franklin additional time to provide an expert opinion. Franklin‟s rights to proceed

against Bridgestone were expressly reserved, and it was also expressly stated that the

judgment did not preclude Franklin and Bridgestone from engaging in further

discovery. Franklin was cast with all court costs.

Franklin filed a petition for suspensive appeal. She mentioned several different

judgments in the petition, but states that she “desires and hereby suspensive appeal

[sic] this court‟s March 18, 2011, judgment, which granted the Judgment filed by

Defendant, Enterprise-Rent-a-Car, Etal. [sic]” Franklin was billed for costs of appeal.

On July 25, 2011, EAN filed a motion to dismiss appeal based on Franklin‟s failure to

pay costs. On October 21, 2011, the trial court signed an order to the effect that

$4,300.00 paid by Franklin and being held by the Clerk of Court be credited to the

outstanding appeal costs rather than to the outstanding court costs.

Apparently, Franklin obtained counsel, who have filed a brief to this court on

her behalf and who have opposed EAN‟s motion to supplement the record on appeal.

However, it is unclear whether these attorneys are still representing Franklin as she

has filed, in proper person, an opposition to EAN‟s motion to file a supplemental

answer.

DISCUSSION

Motion to Supplement Record

We first consider EAN‟s motion to supplement the record. EAN seeks to have

pages Bates stamped 817 through 836, consisting of Franklin‟s “Opposition to

Proposed Finding [sic] Facts and Law Conclusions As To Enterprise‟s Sanction and

Compel Motions,” added to the record in this case. Franklin, through counsel,

objected to the supplementation of the record on the basis that it is new evidence that

was not considered in the court below. We deny the motion to supplement because

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these documents were not part of the record below, and it is not appropriate to order

the record supplemented with documents that have never been offered, introduced, or

admitted into evidence. See Estate of Nicks v. Patient’s Comp. Fund Oversight Bd.,

05-1624 (La.App. 1 Cir. 6/21/06), 939 So.2d 391; Williams Law Firm v. Bd. of Sup’rs

of La. State Univ., 03-79 (La.App. 1 Cir. 4/2/04), 878 So.2d 557.

Summary Judgment

A motion for summary judgment must be granted where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to material fact, and that the

mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

“Generally, the party bringing the motion bears the burden of proof; however, where

the moving party will not bear the burden of proof at trial, it is not necessary to refute

every element of the claim.” Skulich v. Fuller, 46,733, p. 3 (La.App. 2 Cir. 12/14/11)

82 So.3d 467, 470. Then, the mover is only required to show “an absence of factual

support for one or more elements essential to the adverse party‟s claim.” La.Code

Civ.P. art. 966(C)(2). Thereafter, the burden shifts, and the adverse party must

produce factual support sufficient to show that he will be able to meet his evidentiary

burden of proof at trial. Skulich, 82 So.3d 467 (citing La.Code Civ.P. art. 966(C)(2)).

Furthermore, La.Code Civ.P. art. 967(B) provides that when a motion for

summary judgment is made and supported by competent evidence, “an adverse party

may not rest on the mere allegations or denials of his pleading.” We review summary

judgments de novo, using the same criteria that govern the trial court‟s consideration

of whether or not summary judgment is appropriate. Sensebe v. Canal Indem. Co.,

10-703 (La. 1/28/11), 58 So.3d 441.

On de novo review, we find that EAN adequately supported its motion for

summary judgment. The facts deemed admitted establish that Franklin had no

evidence of a defect in the tire, that there is no evidence that Enterprise knew or

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should have known of any defect at the time of rental, and that Franklin had no expert

testimony. With that showing, the burden shifted to Franklin to produce factual

support sufficient to establish that she would be able to satisfy her evidentiary burden

of proof at trial. La. Code Civ.P. art. 967(C)(2).

We find that Franklin failed to satisfy that burden. Franklin failed to respond to

outstanding discovery. This led to the requests for admissions of fact being deemed

admitted and prohibited her from producing evidence to support her allegations of

liability on the part of EAN. The propriety of the judgments that set forth that the

requests for admissions of fact were deemed admitted is not before this court. We

agree with EAN that any objection to these judgments by Franklin are untimely.

“There is no absolute right to delay action on a motion for summary judgment

until discovery is completed.” Simoneaux v. E.I. du Pont de Nemours and Co., Inc.,

483 So.2d 908, 912 (La.1986). “The only requirement is that the parties be given a

fair opportunity to present their claim.” Id. at 913. Here Franklin was compelled to

answer outstanding discovery, and she was given several opportunities to obtain

expert testimony to support her claim. She failed to comply with discovery orders.

Consequently, Franklin‟s showing was inadequate to defeat a properly supported

motion for summary judgment, and we find that the trial court‟s grant of summary

judgment in favor of EAN was correct.

Answer to Appeal and Motion to File Supplemental Answer to Appeal

We must now consider EAN‟s answer to appeal and motion to file

supplemental answer to appeal. We grant EAN‟s motion to file its supplemental

answer to appeal.

Louisiana Code of Civil Procedure Article 2164 provides:

The appellate court shall render any judgment which is just, legal,
and proper upon the record on appeal. The court may award damages,
including attorney fees, for frivolous appeal or application for writs, and
may tax the costs of the lower or appellate court, or any part thereof,

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against any party to the suit, as in its judgment may be considered
equitable.

In Broussard v. Union Pac. Res. Co., 00-1079, pp. 9-10 (La.App. 3 Cir.

1/31/01), 778 So.2d 1199, 1205, writ denied, 01-589 (La. 4/27/01), 791 So.2d 118,

this court stated:

Lack of merit to an appeal does not necessarily mean that the
appeal is frivolous. Hershell Corp. v. Fireman’s Fund Ins. Co., 98-1352
La.App. 3 Cir. 6/2/99); 743 So.2d 698. “Appeals are always favored and,
unless the appeal is unquestionably frivolous, damages will not be
allowed.” Hampton v. Greenfield, 618 So.2d 859, 862 (La.1993).
“Damages for frivolous appeal are only allowed when „it is obvious that
the appeal was taken solely for delay or that counsel is not sincere in the
view of the law he advocates even though the court is of the opinion that
such view is not meritorious.‟” Id. (quoting Parker v. Interstate Life &
Accident Ins. Co., 248 La. 449, 179 So.2d 634, 636-37 (1965)).

We do not find this to be the case with Franklin‟s appeal, and we will not award any

damages for frivolous appeal.

EAN also seeks to enforce upon the judgment granting it costs on the grounds

that the appeal should not be treated as suspensive since Franklin did not file a

suspensive appeal bond. “In ordinary proceedings, a failure to pay a suspensive

appeal bond is not generally considered grounds for dismissal because the appeal is

simply converted to a devolutive appeal when the appeal bond is not timely paid.”

Franco v. Franco, 04-967, p. 13 (La.App. 4 Cir. 7/28/04), 881 So.2d 131, 139 (citing

Lakewind East Apartments v. Poree’, 629 So.2d 422 (La.App. 4 Cir. 1993)). Thus,

we agree with EAN that they can enforce the judgment against Franklin for all court

costs.

We next consider EAN‟s argument that the trial court erred in denying its

motion for sanctions which was filed February 11, 2011, relative to alleged violations

of La.Code Civ.P. arts. 863 and 864. The trial court refused to order sanctions against

this pro se litigant even though it felt that defending the case was made more

expensive and more difficult because of Franklin‟s actions and inactions. The trial

court did order Franklin to pay $500.00 in attorney fees as well as payment of court

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costs. The trial court signed written reasons for this ruling on April 13, 2010.

However, these reasons were not filed in the record until April 14, 2011.

The trial court has discretion to sanction under La. Code Civ.P. art. 863;

however, its factual findings regarding its decision not to award sanctions is reviewed

under the manifest error/clearly wrong standard. Unkel v. Unkel, 29,728 (La.App. 2

Cir. 8/20/97), 699 So.2d 472 (citing Diesel Driving Academy, Inc. v. Ferrier, 563

So.2d 898 (La.App. 2 Cir. 1990)). We find no abuse of discretion.

Finally, we consider EAN‟s argument that Franklin should be found to be in

direct contempt of court as defined by La.Code Civ.P. art. 222. It appears that no

proceedings were held regarding the alleged contempt of court. The trial court did

note that “the facts may support a finding of contempt of Court for failing to provide

the Court and Enterprise with a proper address after being ordered to do so in Court”

and that “the Court did not have „personal knowledge‟ that the address provided was

incorrect.” No trial is necessary to adjudicate a person guilty of direct contempt;

however, the person must be given “an opportunity to be heard orally by way of

defense or mitigation.” La.Code Civ.P. art. 223. We find that a remand is necessary

regarding EAN‟s allegations of contempt on the part of Franklin since no proceedings

were held in the trial court in this respect and because Franklin is entitled to the

opportunity to be heard “by way of defense or mitigation.”

DECREE

For the reasons expressed, summary judgment in favor of EAN is affirmed. All

costs of this appeal are assessed to Plaintiff, Percival Franklin. The matter is

remanded to the trial court for further proceedings regarding contempt of court.

SUMMARY JUDGMENT AFFIRMED. REMANDED FOR FURTHER
PROCEEDINGS REGARDING CONTEMPT OF COURT.

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