Leonard Blackwell v. Waste Management of Louisiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-560

LEONARD BLACKWELL

VERSUS

WASTE MANAGEMENT OF LOUISIANA, LLC

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20131610
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

AFFIRMED.

Marcus A. Bryant, LLC.
1405 W. Pinhook Road, Suite 110
Lafayette, LA 70508
(337) 504-4106
COUNSEL FOR PLAINTIFF/APPELLANT:
Leonard Blackwell

Mark R. Pharr, III
Galloway, Johnson, Tompkins, Burr & Smith, PLC
328 Settlers Trace Boulevard
Lafayette, LA 70508
(337) 735-1760
COUNSEL FOR DEFENDANT/APPELLEE:
Waste Management of Louisiana, LLC

Lindsay L. Meador
Galloway, Johnson, Tompkins, Burr & Smith, PLC
328 Settlers Trace Boulevard
Lafayette, LA 70508
(337) 735-1760
COUNSEL FOR DEFENDANT/APPELLEE:
Waste Management of Louisiana, LLC

PETERS, J.

Leonard Blackwell brought suit against Waste Management of Louisiana,

LLC to recover damages to the parking lot of his Lafayette, Louisiana apartment

complex. He appeals the trial court grant of a summary judgment dismissing his

suit. For the following reasons, we affirm the trial court’s judgment in all respects.

DISCUSSION OF THE RECORD

Mr. Blackwell is the owner of an apartment complex known as the Blaine

Street Apartments and located at 120 Blaine Street in Lafayette, Louisiana. In

1998 he entered into a Commercial Service Agreement (“the Agreement”) with

Waste Management of Louisiana, LLC (“Waste Management”) wherein Waste

Management agreed to provide and service a large commercial waste dumpster

container located at the apartment complex. The Agreement had an initial term of

three years, and Mr. Blackwell and Waste Management have renewed the

Agreement under the same terms and conditions every three years following the

initial term. It is not disputed that the Agreement was still in force and effect at the

time this litigation arose.

On March 27, 2013, Mr. Blackwell filed suit seeking to recover damages

from Waste Management based on assertions that its employees had destroyed

portions of the apartment complex parking areas by driving the heavy dumpster

trucks used in the collection process on the areas. In his petition, Mr. Blackwell

asserted that this activity constituted both negligence and a breach of the

Agreement by using an area of the apartment complex not designed to

accommodate heavy equipment. The damage, according to Mr. Blackwell’s

petition, was of such an extent that the parking area could no longer be used by

those residing in the apartment complex.

Waste Management answered the petition denying liability for the damage.

On November 5, 2013, Waste Management filed a motion for summary judgment

wherein it asserted that there were no genuine issues of material fact in the

litigation and that the terms of the Agreement precluded recovery of Mr.

Blackwell’s claims for damages. The trial court set the motion for hearing on

December 2, 2013. On November 25, 2013, Mr. Blackwell filed his own motion

seeking summary judgment relief, asserting that the record supported his claim that

he was entitled to recover damages. Mr. Blackwell’s motion is entitled

“PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT AND

MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT.” The filing was not of two different documents, but a

single filing incorporating the memorandum in the summary judgment motion

itself.

At the December 2, 2013 hearing, counsel for Waste Management orally

requested that the trial court not allow Mr. Blackwell’s counsel to argue the

motions based on his failure to submit his client’s opposition to its summary

judgment at least eight calendar days before the hearing, in violation of the

provisions of La.Dist.Ct.R. 9.9. Counsel for Waste Management also requested

that the trial court not consider a repair estimate and certain photographs attached

to Mr. Blackwell’s opposition to its summary judgment motion because the

documents were not authenticated by affidavits as required by La.Code Civ.P. art.

966(B)(1).

The trial court refused to consider the repair estimate and photographs,

denied Mr. Blackwell’s counsel the opportunity to argue, granted Waste

Management’s motion for summary judgment, and dismissed Mr. Blackwell’s suit.

On January 6, 2014, the trial court executed a judgment corresponding to its ruling.
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Thereafter, Mr. Blackwell perfected this appeal, asserting that the trial court erred

in granting the summary judgment, in denying oral argument to his counsel, and in

striking the exhibits attached to his motion and memorandum.

OPINION

It is well-settled that “[a]ppellate review of the granting of a motion for

summary judgment is de novo, using the identical criteria that govern the trial

court’s consideration of whether summary judgment is appropriate.” Smitko v. Gulf

S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

Louisiana Code of Civil Procedure Article 966, which governs summary

judgment proceedings, was significantly amended in both the 2012 and 2013

legislative sessions. While the procedure is still favored, and while the goal set

forth in La.Code Civ.P. art. 966(A)(2) remains the “just, speedy, and inexpensive

determination of every action except those disallowed by Article 969,” the

requirements of proof have significantly changed.

Prior to August 1, 2012, the trial court could consider “the pleadings,

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

affidavits that might be offered by the parties to determine whether there existed a

genuine issue of material fact and whether the mover was “entitled to judgment as

a matter of law.” La.Code Civ.P. art. 966(B) (emphasis added). However, by

2012 La. Acts No. 257, § 1, the Louisiana Legislature significantly changed

La.Code Civ.P. art. 966, and one of those changes included amending and

restructuring La.Code Civ.P. art. 966(B). The language cited above was moved to a

new subparagraph designated as La.Code Civ.P. art. 966(B)(2), but without the

words “on file.” To emphasize the significance of the deletion of these two words,

the legislature added a new subparagraph designated as La.Code Civ.P. art.

966(E)(2), which provided that “[o]nly evidence admitted for purposes of the
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motion for summary judgment shall be considered by the court in its ruling on the

motion.” The next year, by 2013 La. Acts No. 391, § 1, the Louisiana Legislature

again significantly changed La.Code Civ.P. art. 966 by, among other changes,

changing the designation of La.Code Civ.P. art. 966(E)(2) to La.Code Civ.P. art.

966(F)(2) and amending it to read as follows:

Evidence 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. Only evidence admitted for
purposes of the motion for summary judgment may be considered by
the court in its ruling on the motion.

Additionally, La.Code Civ.P. art. 966(F)(3) was added by 2013 La. Acts No. 391,

§ 1, and provides 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 thereof.”

The summary judgment now before us was heard by the trial court on

December 2, 2013. Therefore, the summary judgment law applicable to this appeal

is that in effect after the effective date of the amendments to La.Code Civ.P. art.

966 by 2013 La. Acts No. 391, § 1. Still, neither the 2012 amendments nor the

2013 amendments changed the burden of proof applicable to a motion for

summary judgment.

The burden of proof remains with the movant. However, if the
movant will not bear the burden of proof at trial on the matter that is
before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for
one or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual
support sufficient to establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is no genuine issue of
material of fact.

La.Code Civ.P. art. 966(C)(2).
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In support of its request for summary judgment relief, Waste Management

attached the following exhibits to its motion and memorandum:

1. Copy of the Agreement.
2. Excerpts from the deposition of Mr. Blackwell taken August 12,
2013.
3. Copy of Mr. Blackwell’s original petition.
4. Statement of undisputed facts.

In addition to another copy of the Agreement and additional excerpts from

his deposition, Mr. Blackwell attached photographs of the area where the damage

was sustained as well as a copy of a damage estimate to his motion and

memorandum.

The filings by both parties establish that the parking lot at the apartment

complex has sustained damage which occurred over a period of time and that the

Agreement was in full force and effect during the time in question. Mr. Blackwell

testified in his deposition that the area directly in front of the dumpster and the

direct area surrounding the dumpster was the only area having concrete of

sufficient strength to bear the weight of Waste Management’s dumpster truck, and

that Waste Management caused damage to the other concrete parking areas by

using the parking lot to turn its service vehicles around in order to exit the complex.

At the same time, he acknowledged that the Agreement does not address ingress

and egress to the apartment complex, and that he and the Waste Management

officials never discussed a particular pathway for access to the dumpster.

According to Mr. Blackwell, he told Waste Management where the dumpster was

to be located and for them to service the dumpster and place it back in that location.

While he did not direct Waste Management on how to exit and enter the premises,

he acknowledged that Blaine Street is a dead end street and that the servicing

vehicle would have to turn around somewhere in order to exit the premises.

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Despite the Agreement being in effect since 1998, and the continuing nature of the

damage to the parking lot, Mr. Blackwell did not connect the cause of the damage

to Waste Management’s activities until September of 2012.

With regard to ownership and use of the equipment, and ingress and egress

to the apartment complex, Paragraph 6 of the Agreement reads as follows:

EQUIPMENT, ACCESS. All equipment furnished by Company shall
remain the property of Company; however, Customer shall have care,
custody and control of the equipment and shall bear responsibility and
liability for all loss or damage to the equipment and for its contents
while at Customer’s location. Customer shall not overload, move or
alter the equipment and shall use the equipment only for its intended
purpose. At the termination of this Agreement, Customer shall return
the equipment to Company in the condition in which it was provided,
normal wear and tear excepted. Customer shall provide unobstructed
access to the equipment on the scheduled collection day. Customer
shall pay, if charged by Company, an additional fee for any service
modifications caused by or resulting from Customer’s failure to
provide access. Customer warrants that Customer’s property is
sufficient to bear the weight of Company’s equipment and vehicles
and that Company shall not be responsible for any damage to the
Customer’s property resulting from the provision of services.

(Emphasis added.)

The trial court found that the underlying facts were not in dispute, and that

the dispositive issue was whether the Agreement provided Waste Management a

defense from Mr. Blackwell’s claims for damages. In its written reasons for

judgment, the trial court found that the last sentence of Paragraph 6 was “clear and

explicit,” and that it was unnecessary to look further to determine the intent of the

parties. That being the case, the trial court found that Waste Management was not

liable to Mr. Blackwell for the damages to the parking lot.

At the request of counsel for Waste Management, the trial court refused to

allow Mr. Blackwell’s counsel to orally argue at the December 2, 2013 hearing

based on its finding that his counsel failed to comply with the notice requirements

of La.Dist.Ct.R. 9.9(b), which provides that:

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A party who opposes an exception or motion shall concurrently
furnish the trial judge and serve on all other parties an opposition
memorandum at least eight calendar days before the scheduled
hearing. The opposition memorandum shall be served on all other
parties so that it is received by the other parties at least eight calendar
days before the hearing, unless the court sets a shorter time.

The penalty for failure to timely serve the opposition is found in La.Dist.Ct.R.

9.9(e), which provides that:

Parties who fail to comply with paragraphs (b) and (c) of this
Rule may forfeit the privilege of oral argument. If a party fails to
timely serve a memorandum, thus necessitating a continuance to give
the opposing side a fair chance to respond, the court may order the
late-filing party to pay the opposing side’s costs incurred on account
of the untimeliness.

(Emphasis added.)

The trial court explained its ruling that Mr. Blackwell’s counsel had

forfeited the privilege of oral argument in its reasons for judgment:

The record reflects that the plaintiff’s opposition was filed on
November 25, 2013 (7 days prior to the hearing), and defense counsel
stated that she did not receive plaintiff’s opposition until November
27, 2013, which was the day before Thanksgiving. The Court noted
tht the defendant’s Motion for Summary Judgment and Memorandum
in Support were filed on November 5, 2012, and as such, plaintiff’s
counsel had ample opportunity to timely file his opposition.
Defendant’s counsel stated that although she worked through the
Thanksgiving holiday weekend, she was prejudiced by the fact that
even had she reviewed the opposition on November 25, 2013, the
courthouse closure due to the Thanksgiving holiday would have
precluded her from filing a timely reply allowing defendant to have
received it one full working day before the hearing, pursuant to
Uniform District Court Rule 9.9(c). . . . Due to this, the Court found
that the defendant would have been substantially prejudiced were
plaintiff’s counsel permitted to argue and granted the defendant’s
motion and denied plaintiff’s counsel the opportunity to argue orally.

Waste Management’s counsel also moved for the photographs and repair

estimate exhibits attached to Mr. Blackwell’s opposition memorandum to be struck

from the record. The trial court granted the motion and explained its ruling in its

reasons for judgment by stating that “[p]ursuant to La.C.C.P. art. 966(B)(1) this

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Court found that the photographs were not authenticated by affidavits, so no

foundation was laid to authenticate them as competent evidence.”1

Beginning with the issue of the exhibits, we first note that Waste

Management did not object in its memorandum or in a written motion to strike as

is now required by La.Code Civ.P. art. 966(F)(3). However, we still find no error

in the trial court’s ruling with respect to the exhibits as neither the photographs nor

the damage estimate can be considered as pleadings, depositions, answers to

interrogatories, admissions, or affidavits, which might be considered by the trial

court under the authority of La.Code Civ.P. art. 966(B)(2). Therefore, the trial

court did not err in refusing to consider them.

We also find no abuse of discretion in the trial court’s refusal to allow Mr.

Blackwell’s counsel to argue his position at the December 2, 2013 hearing. After

Waste Management filed its November 5, 2013 motion, Mr. Blackwell did not

respond for twenty days, and when he did, his response was filed on the

Wednesday before the beginning of the Thanksgiving holiday period, and less than

the eight calendar day period required by La.Dist.Ct.R. 9.9(c). The purpose of

requiring that an opposition memorandum be served on the mover at least eight

days before the hearing on a motion for summary judgment is to allow both the

court and the mover sufficient time to narrow the issues in dispute and prepare for

argument at the hearing. Mahoney v. East Carroll Parish Police Jury, 47,494 (La.

App. 2 Cir. 9/26/12), 105 So.3d 144, writ denied, 12-2684 (La. 2/8/13), 108 So.3d

88. Additionally, oral argument is a privilege, not a right, and a litigant may forfeit

that privilege by failing to comply with filing guidelines. O’Connor v. Nelson, 10-

250 (La. App. 5 Cir. 1/11/11), 60 So.3d 27).

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While we note that the trial court did not mention the repair estimate in its reasons for
judgment, we construe the reasoning therein to include that exhibit as well.
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Turning to an analysis of the trial court’s ultimate judgment on Waste

Management’s summary judgment motion, we first note that generally, legal

agreements have the effect of the law upon the parties, and, as they bind

themselves, they shall be held to a full performance of the obligations flowing

therefrom. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545, p.16

(La.App. 1 Cir. 3/11/94), 634 So.2d 466, 479, writ denied, 94-906 (La. 6/17/94),

638 So.2d 1094. Additionally, La.Civ.Code art. 2046 provides that “[w]hen the

words of a contract are clear and explicit and lead to no absurd consequences, no

further interpretation may be made in search of the parties’ intent.” Furthermore,

“[a] person who signs a written contract is presumed to know its contents and

cannot avoid its obligations by contending that he did not read it, that he did not

understand it, or that the other party failed to explain its meaning.” Carter

Logging, L.L.C. v. Flynn, 44,188, p. 4 (La.App. 2 Cir. 4/9/09), 7 So.3d 195, 198.

Paragraph 6 of the Agreement clearly states that Mr. Blackwell “warrants

that [his] property is sufficient to bear the weight of [Waste Management’s]

equipment and vehicles and that [Waste Management] shall not be responsible for

any damage to [Mr. Blackwell’s] property resulting from the provision of

services.” The Agreement does not designate an area where Waste Management’s

vehicles were prohibited to traverse, and instead, Paragraph 6 provides that Waste

Management was to have “unobstructed access to the equipment on the scheduled

day.” We find that the words of the Agreement are clear, explicit, and lead to no

absurd consequences. Thus, we find no error in the trial court’s grant of Waste

Management’s summary judgment motion.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the

motion for summary judgment in favor of Waste Management of Louisiana, LLC
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and dismissing the claims of Leonard Blackwell. We assess all costs of this appeal

to Leonard Blackwell.

AFFIRMED.

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