Connie Evans v. Randy Bordelon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-888

CONNIE EVANS, ET AL.

VERSUS

RANDY BORDELON, ET AL.

**********

APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 11-C-5409-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, Elizabeth A. Pickett, Billy H.
Ezell, and John E. Conery, Judges.

Ezell, J., dissents and assigns written reasons.

Pickett, J., dissents, and would affirm based on the evidence properly before
the court.

REVERSED AND REMANDED.

Brian M. Caubarreaux
Emily G. Meche
Derrick G. Earles
Robert M. Marionneaux, Jr.
Brian Caubarreaux & Associates
Post Office Box 129
Marksville, Louisiana 71351
(318) 253-0900
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Connie Evans
Coral Evans

James P. Doherty, III
Frederick & Doherty
Post Ofice Box 52880
Lafayette, Louisiana 70505-2880
(337) 269-5143
COUNSEL FOR DEFENDANTS/APPELLEES:
Randy Bordelon, individually and d/b/a Bordelon’s CB & Audio
Employers Mutual Casualty Company

CONERY, Judge.

Connie Evans appeals the decision of the trial court below granting the

motion for summary judgment filed by Randy Bordelon d/b/a Bordelon’s CB &

Audio (hereinafter Bordelon’s). For the following reasons, we reverse the decision

of the trial court and remand the case to the district court for further proceedings in

accordance with this court’s ruling.

Mrs. Evans claims that on January 7, 2011, she tripped on a concrete landing

that she alleges was obscured by grass as she entered Bordelon’s. The fall caused

serious injury to her arm. Bordelon’s filed a motion for summary judgment, which

was granted after Mrs. Evans failed to introduce any evidence at the hearing on

that motion. From that decision, Mrs. Evans appeals.

Mrs. Evans asserts two assignments of error on appeal. Fist she claims that

the trial court improperly interpreted La.Code Civ.P. art. 966(F)(2), and second she

claims that the trial court erroneously granted Bordelon’s motion for summary

judgment in the face of contradictory evidence. Because our discussions

concerning the assignments of error overlap, we will address them as one.

LAW AND DISCUSSION

Standard of Review

Summary judgment is favored in Louisiana and “is designed to secure the

just, speedy, and inexpensive determination of every action[.]” La.Code Civ.P. art.

966(A)(2). Summary judgment shall be rendered “if the pleadings, depositions,

answers to interrogatories, and admissions, together with the affidavits, if any,

admitted for purposes of the motion for summary judgment, show that there is no

genuine issue as to material fact, and that mover is entitled to judgment as a matter

of law.” La.Code Civ.P. art. 966(B)(2). A trial court’s judgment granting or

denying a motion for summary judgment is reviewed de novo. Bernard v. Ellis,

11-2377 (La. 7/2/12), 111 So.3d 995. The appellate court should use the same

standard as the trial court in determining whether summary judgment is proper;

whether a genuine issue of material fact exists, and whether the mover is entitled to

judgment as a matter of law. Arceneaux v. Arceneaux, 13-511 (La.App. 3 Cir.

11/6/13), 127 So.3d 61, writ denied, 13-2827 (La. 2/14/14), ___ So.3d ___.

At the time of the hearing on the motion, La.Code Civ.P. art. 966 mandated

that only evidence formally admitted during the summary judgment hearing could

be considered by the trial court. Marengo v. Harding, 13-47 (La.App. 5 Cir.

5/16/13), 118 So.3d 1200. In Marengo, the court stated:

As of August 15, 2012, the effective date of the 2012
amendments, LSA-C.C.P. art. 966 mandates that only evidence
formally admitted into evidence during the summary judgment
hearing can be considered by the trial court. Evidence physically
attached to the motion or placed in the record cannot be considered
unless it is properly introduced and admitted into evidence at the
hearing.

Id. at 1202.

The evidence attached to the opposition memorandum by Mrs. Evans was

not formally introduced into evidence at the hearing held on April 18, 2013. The

only evidence introduced at the hearing was introduced by Bordelon’s. Therefore,

at the time the trial court made its ruling, it was technically correct.

However, recently the Louisiana Legislature again amended the law on

summary judgment procedure to no longer require the filing of exhibits into the

record, provided the exhibits are attached to a motion for summary judgment or

memorandum. In Midland Funding, LLC v. Urrutia, 13-459, p. 2 (La. App. 5 Cir.

12/19/13), ___So.3d ___, ___ n.1 (emphasis ours, alteration in original), the fifth

2

circuit interpreted the amendment to be procedural and hence to be applied

retroactively:

La. C.C.P. art. 966 was amended effective August 1, 2013 to remove
the requirement of formal introduction of evidence at the hearing on
the motion for summary judgment. The article now states, in
subparagraph F(2), in pertinent part, that “[e]vidence cited in and
attached to the motion for summary judgment or memorandum filed
by an adverse party is deemed admitted for purposes of the motion for
summary judgment unless excluded in response to an objection made
in accordance with Subparagraph (3) of this Paragraph.”
Subparagraph F(3) of this article states that “[o]bjections to evidence
in support of or in opposition to a motion for summary judgment may
be raised in memorandum or written motion to strike stating the
specific grounds therefor.”

“This amendment to Article 966 is procedural and therefore applies retroactively.”

Id.

We agree with our brethren on the fifth circuit. Since there is no longer a

requirement to formally admit the evidence at the hearing, we will consider all

evidence attached to plaintiff’s memorandum.

Further complicating this case is the fact that there were two separate

motions for summary judgment. The first motion for summary judgment (first

motion) was filed by Bordelon on November 14, 2012. The exhibits attached to

the motion and memorandum included photographs taken by Aaron Owens, the

affidavits of Raynell Joseph Charles, Vanessa Bordelon, Randy Bordelon, plus two

documents entitled “Fire Marshal Report” and “BECC Enterprises LLC estimate.”

Mrs. Evan’s opposition to Bordelon’s first motion for summary judgment

had two exhibits attached, the July 30, 2012 deposition of Mrs. Evans and the

November 30, 2012 affidavit of Mrs. Evans’ safety expert, Phillip Beard, P.E.,

which contained his expert report. Mr. Beard’s submission included the following

attachments: “Photographs taken by Phillip Beard, P.E. numbered P-1-P-15,

3

Existing Entrance Landing Drawing CP1, Contractor’s estimate for landing repair,

Curriculum Vitae, Methodology and Litigation Log.”

The first motion for summary judgment was heard by the trial court on

December 10, 2012, and there is no record of the transcript of the hearing in this

appellate record. The trial court denied Bordelon’s first motion for summary

judgment on January 23, 2013, because discovery was not complete. The trial

court also ruled that Bordelon’s motion for summary judgment could be re-urged

once discovery was complete.

Bordelon’s re-urged its motion for summary judgment on April 3, 2013,

(second motion) which was heard by the trial court on April 18, 2013. At the

hearing, Bordelon’s requested that all exhibits attached to the first motion for

summary judgment as well as the exhibits attached to its second motion for

summary judgment be admitted into evidence. The exhibits attached to Bordelon’s

second motion for summary judgment included information on Dan Oas, D.O., an

“Orthopaedic Trauma & Reconstructive Specialist,” and the Curriculum Vitae and

the Methodology and Litigation Log of Phillip Beard, P.E.

Attached to Mrs. Evans’ opposition to Bordelon’s second motion for

summary judgment was a supplemental affidavit from her safety expert, Phillip

Beard, P.E., a 2001 letter from the Louisiana State Fire Marshal, and the

depositions of Eddie Stagg, Sr. (a Bordelon’s employee), Randall Bordelon, and

Wendell Bordelon.

A de novo review of the transcript of the April 18, 2013 hearing leads us to

the conclusion that the trial court had reviewed the original affidavit of Phillip

Beard, P.E. and the exhibits attached, filed in connection with Bordelon’s first

motion for summary judgment. The original affidavit of Mr. Beard was attached

4

as Exhibit B to Mrs. Evan’s memorandum in opposition to Bordelon’s first motion

for summary judgment.

However, the trial court, after a discussion on the record with counsel,

applied the requirements of the then applicable version of La.Code Civ.P. art. 966,

and excluded from evidence all documentation not formally submitted into

evidence at the hearing, stating “At trial, unless it’s offered, it is not evidence.

That’s what the code says and I have to follow it.”

The trial court then ruled as follows:

Okay. So considering the evidence as presented today, and the
evidence that I have in front of me dealing with, particularly, the
photographs, and dealing with the other motions for summary
judgment in which the affidavit of Mr. Beard was presented, the
Court has to grant this motion for summary judgment on the basis
that it finds no unreasonably hazardous condition on the premises.

(Emphasis added.)

This court has determined the supplemental affidavit of Mr. Beard

submitted as Exhibit A by Mrs. Evans in connection with her opposition to

Bordelon’s second motion for summary judgment must be considered as a part of

the record on appeal. The supplemental affidavit contains language that refers to

and specifically adopts Mr. Beard’s original affidavit dated November 30, 2012,

and states in pertinent part, “That a previous affidavit dated November 30, 2012

has been issued by me in this case and all the facts, opinions and/or conclusions in

that affidavit remain valid. Additional information has been provided subsequent

to the November 30, 2012 affidavit and said information has bearing in this

matter.”

In his supplemental affidavit, Mr. Beard defends his use of the Life Safety

Code as a basis for his original conclusion in his November 30, 2012 original

5

affidavit that a three-inch variance is unreasonable under that Code. Mr. Beard

also supports his application of the Life Safety Code in his original affidavit based

on a recently discovered review letter from the Fire Marshal pertaining to

Bordelon’s property at issue.

Mr. Beard’s supplemental affidavit quotes portions of the Fire Marshal’s

letter at number six, which states, “101:5-2.1.3 Provide landings outside exterior

doors level with the floor.” Based on the requirement cited in the review letter, Mr.

Beard concludes:

However, because the landing is indeed part of the entry as addressed
by the review letter, the opinions (original affidavit) remain valid in
using the Code as a reasonable standard. If the ¾ inch variation at the
door is considered hazardous by the Code, then it is logical to
conclude that the 3 inch change of elevation at the outside edge of the
landing is also dangerous. Obscuring the change of elevation by the
grass exacerbates the dangerous condition.

(Emphasis added.)

The situation surrounding the documentation in the record is further

exacerbated by the trial court’s exclusion from the record of the photographs

attached to Mr. Beard’s November 30, 2012 original affidavit. According to Mr.

Beard, the photographs depict the slab and support his opinion that the “3 inch

change of elevation at the outside edge of the landing is also dangerous. Obscuring

the change of elevation by the grass exacerbates the dangerous condition.” The

photographs and deposition of Mrs. Evans were clearly considered by Mr. Beard

when he executed his second affidavit and are proper evidence for an expert to

consider regardless of whether the actual pictures were filed in evidence at the

hearing. We find that Mr. Beard’s supplemental affidavit must be considered and

that it creates a genuine issue of material fact.

6

For the forgoing reasons, the decision of the trial court below is reversed and

the case is remanded to the district court for further proceedings in accordance with

this court’s ruling. Costs of this appeal are hereby assessed against Randy

Bordelon, individually and d/b/a Bordelon’s CB & Audio and Employers Mutual

Casualty Company.

REVERSED AND REMANDED.

7

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-888

CONNIE EVANS, ET AL.

VERSUS

RANDY BORDELON, ET AL.

EZELL, Judge, dissenting

I dissent in this matter to bring to the attention of attorneys and the

legislature the mess that has been clogging up the legal system and clogging up the

minds of those that have to deal with this inept statute.

The plaintiff’s injury occurred prior to the last amendment to La.Code.Civ.P.

art. 966, which became effective on August 2013. The only evidence that could be

relied upon in a motion for summary judgment was the evidence formally admitted

during the summary judgment hearing.

In this instance, the testimony of plaintiff was not properly admitted for her

motion for summary judgment. In fact, no testimony from the plaintiff was

admitted for the purposes of this motion for summary judgment because none was

introduced at the hearing or attached to her opposition memorandum.

Thus, based on the evidence properly before this court, I would agree with

the trial court’s decision in this matter.

For the foregoing reasons, I respectfully dissent in this matter.