Gerald Rodney White and Charlotte White v. Louisiana Dept. of Transportation & Development

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-629

GERALD RODNEY WHITE AND CHARLOTTE WHITE

VERSUS

LOUISIANA DEPARTMENT OF TRANSPORTATION &
DEVELOPMENT, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 253,702 “B”
HONORABLE THOMAS MARTIN YEAGER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

CONERY, J., concurs in the result.

APPEAL DISMISSED.

Fred Andrew Pharis
Pharis & Pharis
831 DeSoto Street
Alexandria, LA 71301
Telephone: (318) 445-8266
COUNSEL FOR:
Plaintiffs/Appellees - Gerald Rodney White and Charlotte White

Jerold Edward Knoll
The Knoll Law Firm
P. O. Box 426
Marksville, LA 71351
Telephone: (318) 253-6200
COUNSEL FOR:
Plaintiffs/Appellees - Gerald Rodney White and Charlotte White

Mickey Stephens deLaup
Mickey S. deLaup, APLC
2701 Metairie Road
Metairie, LA 70001
Telephone: (504) 828-2277
COUNSEL FOR:
Defendant/Appellee - Safeco Insurance Co. of Oregon

Victoria R. Murry
Assistant Attorney General
Shane D. Williams
Assistant Attorney General
Louisiana Department of Justice
P. O. Box 1710
Alexandria, LA 71309-1710
Telephone: (318) 487-5944
COUNSEL FOR:
Defendant/Appellant - Louisiana Department of Transportation &
Development

Madeline J. Lee
Bolen, Parker, & Brenner, Lee & Engelsman, Ltd.
P. O. Box 11590
Alexandria, LA 71315-1590
Telephone: (318) 445-8236
COUNSEL FOR:
Defendants/Appellees - Church Mutual Insurance Company, Garold
A. Mangun, and Mickey Mangun

THIBODEAUX, Chief Judge.

Defendant State of Louisiana, Through the Department of

Transportation and Development (hereafter “DOTD”) appeals a summary

judgment granted in favor of homeowners and co-defendants, Rev. Garold Mangun

and Mrs. Mickey Mangun (hereafter “the Manguns”). DOTD contends that there

is a genuine issue of material fact because the Manguns knew or should have

known of the defective pecan tree on their property before it fell during a storm,

injuring Plaintiff Gerald Rodney White, and that summary judgment was improper.

The Manguns contend they are not liable because they did not maintain the right-

of-way; DOTD did. Further, the Manguns, along with insurers, Church Mutual

Insurance Company (hereafter “Church Mutual”), and Safeco Insurance Company

of Oregon (hereafter “Safeco”), assert that they may not be considered in the

litigation because they were dismissed on summary judgment and the Plaintiffs did

not appeal the dismissal. Thus, the judgment dismissing them as parties is final.

We find that DOTD may not reference the Manguns because the trial court

dismissed the Manguns. Because we find summary judgment became final when

the adverse judgment was not appealed by the Plaintiffs, this court does not reach

the merits as to whether summary judgment was proper.

I.

ISSUES

We must determine whether a co-defendant dismissed under La.Code

Civ.P. art. 966(G) can be referenced for comparative fault under La.Civ.Code art.

2323 when the plaintiffs did not appeal the summary judgment. If this court finds

that the dismissed co-defendants may be referenced, this court must also determine

whether summary judgment as to the dismissed co-defendants was proper.

II.

FACTS AND PROCEDURAL HISTORY

On August 24, 2014, Mr. White was driving in the eastbound lane of

Highway 496 in Alexandria, Louisiana during a violent thunderstorm. As Mr.

White passed the Manguns’ home, a pecan tree located in the right-of-way across

the street and maintained by DOTD, fell on Mr. White’s truck, pinning him inside

the truck. Mr. White had to be extracted from the truck, and he sustained injuries.

Mr. White brought suit for general and special damages, including

physical pain and suffering, mental anguish and distress, permanent injuries,

medical expenses, lost wages, and any other damages incurred from the accident.

Mr. White’s wife, Charlotte White, brought a claim for loss of consortium. Mr.

and Mrs. White (hereafter “the Whites”) filed suit against the City of Alexandria

(hereafter “the City”), DOTD, the Manguns and their insurers, Church Mutual and

Safeco, alleging negligence for failure to maintain, inspect, and remove the

damaged pecan tree.

The City filed an answer to the petition, pleading the affirmative

defense of comparative fault. The Manguns answered that they had no actual or

constructive notice of the defective tree because they “rarely, if ever” went onto the

property where the tree was located. Furthermore, the defect on the tree was only

visible from the side facing opposite of the roadway and away from the Manguns’

home.

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The City filed a motion for summary judgment asserting that DOTD

is responsible for maintaining the right-of-ways on State highways and that the

City had no notice of the defective pecan tree. The trial court granted the City’s

motion for summary judgment.

The Manguns and Church Mutual filed a motion for summary

judgment. Thereafter, Safeco also filed a motion for summary judgment. The

Manguns asserted that they had no knowledge of the tree’s defect because they

neither maintained the tree nor did they mow the right-of-way. During his

deposition, DOTD’s expert arborist, Mr. Malcolm Guidry, described the tree’s

canopy as healthy. The Whites’ expert arborist, Mr. Robert Thibodeaux, testified

that he saw signs of the tree’s failure through bark twists and discoloration, as well

as a co-dominant trunk visible on pre-accident photographs of the tree. However,

Mr. Thibodeaux noted that these signs were not signs that he would expect a

layperson to recognize as signs of the tree’s failure. DOTD opposed the summary

judgment, arguing that the Manguns did not exercise reasonable care through their

failure to maintain, inspect, and remedy the defective tree. The trial court granted

summary judgment in favor of the Manguns, Church Mutual, and Safeco. The

Whites did not appeal the summary judgment. DOTD now appeals, contending

that there is a genuine issue of material fact as to whether the Manguns had notice

of the defective tree.

III.

STANDARDS OF REVIEW

“When an appellate court reviews the grant or denial of a motion for

summary judgment, it applies the de novo standard of review, ‘using the same

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criteria that govern the trial court’s consideration of whether summary judgment is

appropriate.’” State Farm Mut. Auto. Ins. Co. v. McCabe, 14-501, 14-502, p. 3

(La.App. 3 Cir. 11/5/14), 150 So.3d 595, 597 (quoting Gray v. Am. Nat’l Prop. &

Cas. Co., 07-1670, p. 6 (La. 2/26/08), 977 So.2d 839, 844) (citations omitted).

Under La.Code Civ.P. art. 966(A)(3), a motion for summary judgment “shall be

granted if the pleadings, depositions, answers to interrogatories, admissions, and

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.” McCabe, 150 So.3d at 597.

IV.

LAW AND DISCUSSION

DOTD asserts that the Manguns were negligent in failing to discover

the defect and remove the tree and evidence of the Manguns’ fault should be

introduced for comparative fault at trial. DOTD seeks reversal of the trial court’s

grant of summary judgment, alleging there remains a genuine issue of material fact

over: (1) whether the Manguns exercised reasonable care over their property; (2)

whether or not the Manguns could have detected the defect in the tree; and (3)

whether the Manguns could have remedied the defect with the exercise of

reasonable care.

DOTD alleges that the Manguns are comparatively negligent under

La.Civ.Code art. 2317.1 for the ruin, vice, or defect of the tree and should not have

been dismissed from the suit.

Louisiana Civil Code Article 2317.1 reads:

The owner or custodian of a thing is answerable
for damage occasioned by its ruin, vice, or defect, only
upon a showing that he knew or, in the exercise of
reasonable care, should have known of the ruin, vice, or

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defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care,
and that he failed to exercise such reasonable care . . . .

DOTD contends that it should be able to reference the Manguns’ fault

at trial for purposes of comparative fault under La.Civ.Code art. 2323 even if the

Manguns remain as dismissed co-defendants.

Louisiana Civil Code Article 2323(A) reads:

In any action for damages where a person suffers
injury, death, or loss, the degree of percentage of fault of
all persons causing or contributing to the injury, death, or
loss shall be determined, regardless of whether the person
is a party to the action or a nonparty, and regardless of
the person’s insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of R.S.
23:1032, or that the other person’s identity is not known
or reasonably ascertainable . . . .

DOTD asserts that there remains a genuine issue of material fact that

should be determined by the trier of fact. The Manguns advance the argument that

they can no longer be considered in the litigation as a dismissed co-defendant

under La.Code Civ.P. art. 966(G). The Manguns assert that because the trial court

dismissed them as co-defendants from the case after finding them free from fault,

and the plaintiffs failed to appeal, they may no longer be referenced at trial.

Louisiana Code of Civil Procedure Article 966(G) reads:

When the court grants a motion for summary
judgment in accordance with the provisions of this
Article, that a party or non-party is not negligent, is not at
fault, or did not cause in whole or in part the injury or
harm alleged, that party or non-party shall not be
considered in any subsequent allocation of fault.
Evidence shall not be admitted at trial to establish the
fault of that party or non-party. During the course of the
trial, no party or person shall refer directly or indirectly
to any such fault, nor shall that party or non-party’s fault
be submitted to the jury or included on the jury verdict
form.

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The Manguns state that DOTD’s appeal is without merit because the

Whites did not appeal the summary judgment. Additionally, the Manguns assert

that even if this court considers the merits, there is no genuine issue of material

fact. The trial court found that the Manguns and their insurers were free from fault

and, thus, fault should not be attributed to the Manguns at trial. Further, the

Manguns contend that DOTD maintained the tree and the right-of-way at issue. In

support of their assertion, the Manguns cite Dixon v. Gray Ins. Co., 17-29 (La.App.

5 Cir. 6/5/17), 223 So.3d 658, contending that in the absence of an appeal by the

plaintiffs, the judgment became final and that this court cannot reach the merits as

to whether summary judgment was proper as asserted by DOTD. We agree and

find that once a co-defendant is dismissed upon a determination that the party was

free from fault, the co-defendant may not be reintroduced into the litigation

pursuant to La.Code Civ.P. art. 966(G).

In Dixon, the fifth circuit held that the defendant in an auto accident

could not introduce evidence or make reference to the co-defendant dismissed on

summary judgment because the co-defendant was found free from fault. The court

reasoned that La.Code Civ.P. art. 966(G) is “an emphatic expression by the

legislature that there shall be no evidence admitted, nor any consideration of the

fault or comparative fault of a party or non-party who has been adjudicated to be

without negligence or fault at summary judgment.” Id. at 661.

DOTD seeks to introduce evidence of the Manguns’ comparative fault

at trial even though the Manguns, Church Mutual, and Safeco were dismissed from

the suit on summary judgment because the trial court found the Manguns free from

fault. Like the dismissed co-defendants in Dixon could not be referenced at trial

for comparative fault because of the prohibition provided by La.Code Civ.P. art.

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966(G), the Manguns are no longer a party to the litigation and cannot be

referenced at trial. Any admission of evidence and references to the Manguns at

trial would be in direct conflict with La.Code Civ.P. art. 966(G), and the

legislature’s stated intent. Thus, the Manguns cannot be considered in the

allocation of fault at trial or on a jury verdict form.

Additionally, in Dixon, the court found that the plaintiff’s appeal was

final because the plaintiff did not appeal the judgment. It stated:

When a judgment dismisses one of several
cumulated claims by the plaintiff, the plaintiff must
appeal the adverse judgment to obtain affirmative relief.
Nunez v. Commercial Union Ins. Co., 00-3062 (La.
2/16/01), 780 So.2d 348, 349. The judgment of dismissal
acquires the authority of the thing adjudged when the
plaintiff does not appeal the dismissal of his action.
Grimes v. La. Med. Mut. Ins. Co., 10-0039 (La.
05/28/10), 36 So.3d 215, 217; Nunez, 780 So.2d at 349.
An appeal from the judgment of the trial court by another
party only brings “up on appeal the portions of the
judgment that were adverse to [that party],” but not “the
portions of the judgment that were adverse to the
plaintiff.” Grimes, 36 So.3d at 217, citing Nunez, 780
So.2d at 349.

Id. at 660.

In Dixon, the judgment became final when the plaintiffs did not

appeal, and, thus, the court found the remaining defendant’s appeal was without

merit. Moreover, the court determined it had “no authority to determine whether

the grant of summary judgment against [the dismissed co-defendant] was correct

on its merits.” Id.

Here, DOTD also appeals the judgment seeking to reverse the

summary judgment. However, the Whites did not appeal this adverse judgment.

Accordingly, this judgment acquired “authority of the thing adjudged.” Id. Just as

the Dixon court could not reach the merits as to whether the trial court’s summary

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judgment was proper when the plaintiff did not appeal, here, we are unable to

address the merits because the Whites did not appeal the adverse judgment. The

judgment became final when the Whites did not seek affirmative relief as to the

dismissed co-defendant, the Manguns, in a cumulated claim.

The amendment to La.Code Civ.P. art. 966(G) Comment (m), “adopts

the rule from prior Article 966(G)(1) that if a person is found in a summary

judgment not to be negligent, not at fault, not to have caused the injury or harm,

that person cannot be considered in any allocation of fault.” 2015 La. Acts No.

422, Comment (m). However, La.Civ.Code art. 2323(A) provides for comparative

fault and states that “the degree or percentage of fault of all persons causing or

contributing . . . shall be determined, regardless of whether the person is a party to

the action or a nonparty . . . .” The two articles seemingly conflict after the

amendment of La.Code Civ.P. art. 966(G). Therefore, we must look to harmonize

the implications of the amended La.Code Civ.P. art. 966(G) with La.Civ.Code art.

2323.

When presented with conflicting intercodal articles on a similar

subject matter, the court looks to the principles guiding statutory construction and

interpretation on the same subject matter to harmonize these laws, utilizing

legislative intent and “giv[ing] effect that makes the least change in the existing

body of law.” Wartelle v. Women’s and Children’s Hosp., Inc., 97-744, p. 7 (La.

12/2/97), 704 So.2d 778, 782 (citing Theriot v. Midland Risk Ins. Co., 95-2895 (La.

6/20/97), 694 So.2d 184); La.Civ.Code art. 13. “Where it is possible to do so, it is

the duty of the courts, in the construction of statutes, to harmonize and reconcile

laws, and to adopt that construction of a statutory provision which harmonizes and

reconciles with other statutory provisions.” City of New Orleans v. Bd. of Sup’rs of

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Elections for Parish of Orleans, 216 La. 116, 43 So.2d 237, 246 (1949) (quoting

50 Am. Jur 367, § 363).

“‘[L]aws are presumed to be passed with deliberation, and with full

knowledge of all existing ones on the same subject’[.]” Weller v. Van Hoven, 42.

La.Ann. 600, 7 So. 702, 702 (La.1890) (citations omitted); see also Louisiana

Municipal Ass’n. v. State, 04-227, p. 36 (La. 1/19/05), 893 So.2d 809, 837 (noting

that “the legislature is presumed to have acted with deliberation and to have

enacted a statute in light of the preceding statutes involving the same subject

matter.”). When statutes are in conflict, “the statute specifically directed to the

matter at issue must prevail as an exception to the statute more general in

character.” LeBreton v. Rabito, 97-2221, p. 7 (La. 7/8/98), 714 So.2d 1226, 1229

(citations omitted).

When determining the legislative intent, the House Summary of

Senate Amendments for H.B. 696 sheds light that the proposed law, La.Code

Civ.P. art. 966(G), is a clarification of the existing law provisions, including

La.Civ.Code art. 2323. The amendment is a clarification of “present law

provisions relative to a party who is found not at fault, who shall not be considered

in any subsequent allocation of fault, and submission of the issue to the jury.”

SSHB696, 2015 Leg., Reg. Sess., Act 422 (La. 2015). Accordingly, we find the

amendment to La.Code. Civ.P. art 966(G) is a clarification of La.Civ.Code. art.

2323, and must prevail as a latter introduced amendment and as a clarification of

the legislature’s intent on the issue of comparative fault when a party has been

dismissed from litigation upon a finding that the party was not at fault.

We conclude that DOTD shall not refer directly or indirectly to the

fault of the Manguns nor shall the Manguns be considered in any allocation of fault

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at trial. Accordingly, in the absence of an appeal seeking affirmative relief by the

Plaintiffs, this court does not reach the merits of DOTD’s appeal as to whether the

summary judgment is proper because procedurally it is moot.

V.

CONCLUSION

Based upon the foregoing, we dismiss DOTD’s appeal, finding that

the trial court’s summary judgment in favor of the Manguns is final. Accordingly,

DOTD may not reference the Manguns at trial. All costs are assessed to the

Defendant-Appellant.

APPEAL DISMISSED.

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