Wilvon Allison v. Citgo Petroleum Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-303 consolidated with 18-302

WILVON ALLISON, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2007-3286 C/W 2007-2786
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Candyce G. Perret, Judges.

GREMILLION, J., concurs and assigns written reasons.

PERRET, J., concurs with reasons.

AFFIRMED.

Robert E. Landry
Scofield, Gerard, Pohorelsky, Gallaugher & Landry
901 Lakeshore Drive – Suite 900
Lake Charles, LA 70601
Telephone: (337) 433-9436
COUNSEL FOR:
Defendant/Appellant – CITGO Petroleum Corporation

Kirk Albert Patrick, III
R. Heath Savant
Donahue, Patrick & Scott
450 Laurel Street – Suite 1600
Baton Rouge, LA 70801
Telephone: (225) 214-1908
COUNSEL FOR:
Defendant/Appellee – R & R Construction, Inc.

Wells Talbot Watson
Bagget, McCall , Burgess
P. O. Drawer 7820
Lake Charles, LA 70606-7820
Telephone: (337) 478-8888
COUNSEL FOR:
Plaintiffs/Appellees – Robert D. Marshall, Tamara N. Marceaux, Daron
Christopher Hidalgo, John Thomas Cochran, Gewan Papillion, Alfred
Joseph Carrier, Eric Mark Allison, and Marcus Dwayne Clark

Marshall Joseph Simien, Jr.
Simien Law Firm
2129 Fitzenreiter Road
Lake Charles, LA 70601
Telephone: (337) 497-0022
COUNSEL FOR:
Defendant/Appellant – CITGO Petroleum Corporation

Richard Elliott Wilson
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
Telephone: (337) 436-6611
COUNSEL FOR:
Plaintiffs/Appellees – Gewan Papillion, Eric Mark Allison, Marcus
Dwayne Clark, John Thomas Cochran, Daron Christopher Hidalgo,
Tamara N. Marceaux, Alfred Joseph Carrier, and Robert D. Marshall

Craig Isenberg
Joshua O. Cox
Barrasso Usdin Kupperman Freeman & Sarver, L.L.C.
909 Poydras, Street – 24th Floor
New Orleans, LA 70112
Telephone: (504) 589-9700
COUNSEL FOR:
Defendant/Appellant – CITGO Petroleum Corporation

THIBODEAUX, Chief Judge.

For the reasons discussed in the consolidated appeal of Eric Mark

Allison v. Citgo Petroleum Corporation, et al., 18-302 (La.App. 3 Cir. __/__/18),

___ So.3d ___ (Trial Docket No. 2007-2786), the judgment of the trial court in this

appeal, Wilvon Allison v. Citgo Petroleum Corporation, et al., 18-303 (La.App. 3

Cir. __/__/18), ___ So.3d ___ (Trial Docket No. 2007-3286), is affirmed. Costs of

this appeal are assessed to the defendant, CITGO Petroleum Corporation.

AFFIRMED.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-303 consolidated with 18-302

WILVON ALLISON, ET AL.

VERSUS

CITGO PETROLEUM CORPORATION, ET AL.

GREMILLION, Judge, concurs and assigns the following reasons:

I concur in the result reached in this matter because of CITGO’s stipulation to

fault and liability. I disagree with the majority’s reasoning regarding CITGO’s

motion for summary judgment. The affidavits and attached contracts should not

have been excluded from evidence on the motion for summary judgment. It was not

CITGO’s burden to prove that the omitted portions of the contracts did not address

the statutory employment issue; rather, it became the plaintiffs’ burden to prove that

they did.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-303 consolidated with 18-302

ERIC MARK ALLISON, ET AL.
VERSUS
CITGO PETROLEUM CORPORATION, ET AL.

PERRET, CANDYCE, J. CONCURS WITH REASONS:

I respectfully concur. Although I agree with the majority opinion that “review

of an interlocutory judgment may be obtained by assigning the issue as error in the

unrestricted appeal of the final, appealable judgment to which it relates,” I find that

this court should review the denial of Citgo’s motion for summary judgment on the

issue of statutory employer immunity on the entire record since the case has been

fully tried. As stated by the Louisiana Supreme Court in Hopkins v. American

Cyanamid Company, 95-1088 (La.1/16/96), 666 So.2d 615, 624:

[O]nce a case is fully tried, the affidavits and other limited evidence
presented with a motion for summary judgment--later denied by the
district court--are of little or no value. Appellate courts should not rule
on appeal after a full merits trial on the strength alone of affidavits in
support of a motion for summary judgment that was not sustained in
the district court. In such cases, appellate courts should review the
entire record.

Because Citgo failed to raise the issue of statutory employer immunity at trial and

because it did not attempt to supply the missing parts of the partial contracts

throughout the litigation, I find, based upon my review of the entire record before

us, no merit in Citgo’s assignment of error that the trial court erred in denying its

motion for summary judgment.