Bradley Broussard v. Gulfport Energy Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-839

BRADLEY BROUSSARD

VERSUS

GULFPORT ENERGY CORPORATION, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2015-2233
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

REVERSED.

Randall Kurt Theunissen
S. Brian Perry
Allen & Gooch
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1000
Counsel for Defendants/Appellees:
Wet Tech Lighting, Inc.
Wet Tech Energy, Inc.

Robert A. Mahtook, Jr.
Mahtook & LaFleur, LLC
Post Office Box 3089
Lafayette, Louisiana 70502-3089
(337) 266-2189
Counsel for Defendant/Appellee:
AFX Petrologix, LLC

Leo Raymond McAloon, III
Gieger, LaBorde & Laperouse, LLC
One Shell Square
701 Poydras Street, Suite 4800
New Orleans, Louisiana 70139
(504) 561-0400
Counsel for Defendant/Appellee:
Shamrock Management, LLC

Marc D. Moroux
Juneau David, APLC
Post Office Drawer 51268
Lafayette, Louisiana 70505-1268
(337) 261-1408
Counsel for Defendant/Appellee:
Gulfport Energy Corporation

Thomas M. Flanagan
Sean Brady
Andy Dupre
Anders F. Holmgren
Flanagan Partners LLP
201 St. Charles Avenue, Suite 2405
New Orleans, Louisiana 70170
(504) 569-0235
Counsel for Plaintiff/Appellant:
Bradley Broussard

J. Kyle Findley
Kala Sellers
Adam Lewis
Arnold & Itkin, LLP
6009 Memorial Drive
Houston, Texas 77007
(713) 222-3800
Counsel for Plaintiff/Appellant:
Bradley Broussard

F. Douglas Ortego
LeBas Law Offices
201 Rue Iberville, Suite 100
Lafayette, Louisiana 70508
(337) 236-5500
Counsel for Intervenor:
American Interstate Insurance Company

KEATY, Judge.

Plaintiff/Appellant, Bradley Broussard, appeals the trial court’s grant of

summary judgment in favor of Defendant/Appellee, Wet Tech Energy, Inc. For the

following reasons, the trial court’s judgment is reversed.

FACTS AND PROCEDURAL HISTORY

This personal injury matter stems from injuries sustained by Broussard on

January 21, 2015, while working in the course and scope of his employment with

AFS Petrologix, LLC, on platform 114 in the East Hackberry Field in Calcasieu

Lake, State Lease 50. Broussard was inspecting a navigational light on top of a pole

when it broke, causing him to fall into the water below and sustain injuries. As a

result, Broussard filed an Original Petition for Damages on May 6, 2015, against

Gulfport Energy Corporation as the owner and/or operator of the platform based

upon negligence and premises liability. Broussard’s workers’ compensation insurer,

American Interstate Insurance Company, filed a Petition of Intervention. On

April 26, 2016, Broussard filed his First Amended Petition for Damages, naming

Wet Tech Lighting, Inc., Wet Tech Energy, Inc., and Shamrock Management, L.L.C.,

as additional Defendants. In his amended petition, Broussard alleged that Wet Tech

Lighting, Wet Tech Energy, and Shamrock were negligent by failing to properly

inspect and maintain the navigational light and pole.

On April 11, 2018, Wet Tech Energy filed a motion for summary judgment,

alleging that it was not liable for Broussard’s injuries. Broussard filed an opposition

memorandum and, alternatively, a motion to continue the summary judgment

hearing. Following a hearing on May 14, 2018, the trial court denied Broussard’s

motion to continue and granted Wet Tech Energy’s motion for summary judgment.

The trial court’s written judgment was signed on May 24, 2018, which Broussard

now appeals.

On appeal, Broussard asserts the following assignments of error: (1) The trial

court erred in finding the absence of disputed material facts and granting summary

judgment as a matter of law and (2) in the alternative, the trial court abused its

discretion and erred in refusing to continue the summary judgment hearing.

STANDARD OF REVIEW

The standard of review utilized by an appellate court when reviewing a trial

court’s grant of a motion for summary judgment is de novo. Duncan v. U.S.A.A. Ins.

Co., 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard of review, the

appellate court uses the same criteria as the trial court in determining if summary

judgment is appropriate pursuant to La.Code Civ.P. art. 966. Id. The criteria

enunciated in La.Code Civ.P. art. 966(A)(3) provides that “a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.” “A fact is ‘material’ when its existence or

nonexistence may be essential to [a] plaintiff’s cause of action under the applicable

theory of recovery.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.

7/5/94), 639 So.2d 730, 751. Additionally, a fact is material if it potentially insures

or precludes recovery, affects a litigant’s ultimate success, or determines the

outcome of the legal dispute. Id.

Louisiana Code of Civil Procedure Article 966(D)(1) explains the mover’s

burden of proof on summary judgments as follows:

The burden of proof rests with the mover. Nevertheless, if the
mover will not bear the burden of proof at trial on the issue that is before
the court on the motion for summary judgment, the mover’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 the absence of factual support for one or more elements essential
to the adverse party’s claim, action, or defense. The burden is on the
adverse party to produce factual support sufficient to establish the

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existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law.

DISCUSSION

In his second assignment of error, Broussard contends that the trial court erred

in refusing to continue the summary judgment hearing because he received less than

thirty-days’ notice in violation of La.Code Civ.P. art. 966(C)(1)(b). According to

Broussard, this article ensures that parties are given at least thirty-days’ notice of the

setting of a hearing on a motion for summary judgment. He asserts that this

mandatory pre-hearing notice was not afforded to him.

In opposition, Wet Tech Energy contends that the article at issue states that

the time limits must be followed unless otherwise agreed to by all of the parties and

the court. It points to Broussard’s handling of the case, including the filing of an

opposition addressing the merits and appearing at the hearing to argue his position.

According to Wet Tech Energy, Broussard’s foregoing actions reveal that no

prejudice occurred and that he waived any objection he may have had regarding the

timing of the hearing.

Notice of a hearing on a motion for summary judgment is discussed in

La.Code Civ.P. art. 966, as follows:

C. (1) Unless otherwise agreed to by all of the parties and the
court:

....

(b) Notice of the hearing date shall be served on all parties in
accordance with Article 1313(C) or 1314 not less than thirty days prior
to the hearing.

On review, the record reveals that April 24, 2018 is when Broussard’s counsel

received notice of the hearing scheduled for May 14, 2018. Thus, receipt of the

notice was less than thirty days in violation of La.Code Civ.P. art. 966(C)(1)(b). At

the hearing and in its memoranda filed in the trial court proceeding, Wet Tech
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Energy argued that Broussard waived his right to the thirty-day notice requirement

because he filed an opposition memorandum. Wet Tech Energy also pointed to the

language in La.Code Civ.P. art. 966(C)(1) wherein an exception to the thirty-day

notice requirement exists when otherwise “agreed to by all of the parties and the

court[.]”

In this case, the record shows that Broussard never agreed to a waiver of the

thirty-day notice requirement. Rather, in his opposition memorandum, he objected

and asserted that the hearing “fail[ed] to comply with the required notice under Art.

966(C)(1)(b)” and that he “was not provided the minimum amount of notice, 30 days,

as required.” Broussard argued that the “current hearing should be continued.” At

the hearing on the motion for summary judgment, Broussard advised the trial court

that he sought a continuance because of Wet Tech Energy’s failure to provide the

requisite thirty-days’ notice.

We recognize that La.Code Civ.P. art. 966(C)(1)(b) requires that notice “shall”

be provided thirty days prior to the hearing. In Lewis v. Old Republic Insurance Co.,

17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, this court explained the meaning of

“shall” under La.Code Civ.P. art. 966(B), the provision governing the procedure for

filing, opposing, and replying to a motion for summary judgment. This court in

Lewis, 226 So.3d at 559, held:

As amended, Article 966(B) allows a trial court to extend the deadline
with the agreement of all parties. This condition clearly was not
fulfilled; Relator objected to the late filing of the opposition. The trial
court, therefore, had no discretion to allow this late filing. The refusal
of the trial court to entertain Respondents’ late filings was mandated by
La.Code Civ.P. art. 966.

Similar to Lewis, there was no agreement between Broussard and Wet Tech

Energy to change the thirty-day notice requirement provided in La.Code Civ.P. art.

966(C)(1)(b). This is evident based upon Broussard’s repeated objections. The trial

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court, therefore, had no discretion to allow the summary judgment hearing to occur

on May 14, 2018. Accordingly, this assignment of error has merit, and the summary

judgment is reversed. In light of our holding, we decline to address Broussard’s first

assignment of error.

DECREE

For the above reasons, the trial court’s judgment granting the motion for

summary judgment in favor of Defendant/Appellee, Wet Tech Energy, Inc., is

reversed. All costs associated with this appeal are assessed to Defendant/Appellee,

Wet Tech Energy, Inc.

REVERSED.

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