Billy Jeal Mitchell, Jr. v. Randy Terry

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-527

BILLY JEAL MITCHELL, JR.

VERSUS

RANDY TERRY, ET AL.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 88,875 A
HONORABLE DESIREE DYESS, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of John E. Conery, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Lisa V. Johnson
Corkern, Crews & Guillet
P. O. Box 1036
Natchitoches, LA 71458-1036
(318) 352-2302
COUNSEL FOR DEFENDANTS APPELLEES:
Ben D. Johnson, LLC
Clara Prymus

Monique H. Fields
Attorney at Law
P. O. Box 96
Baker, LA 70704
(225) 775-1677
COUNSEL FOR PLAINTIFF APPELLANT:
Billy Jeal Mitchell, Jr.

WILSON, Judge.

Plaintiff, Billy Jeal Mitchell, Jr., brought this action seeking recovery

for damages suffered after being shot while on premises owned by Ben D.

Johnson, LLC, and Claire Prymus (collectively “Defendants”). The trial court

granted summary judgment in favor of Defendants, finding that there had been

ample time to conduct discovery and Mr. Mitchell did not present any evidence

that there existed any genuine issues of material fact. Mr. Mitchell appeals. For

the following reasons, we affirm the trial court’s grant of summary judgment.

I.

ISSUES

We must decide:

(1) whether the trial court abused its discretion in
denying Mr. Mitchell’s motion for continuance;

(2) whether the trial court erred in granting the
motion for summary judgment with insufficient
evidence; and

(3) whether the trial court erred in finding there had
been an adequate opportunity for discover
before granting the motion for summary
judgment.

II.

FACTS AND PROCEDURAL HISTORY

On December 1, 2013, Ben D. Johnson, LLC entered into a lease

agreement with Justin Terry for the lease of a portion of a building located at 446

Martin Luther King Drive in Natchitoches, LA. On October 16, 2015, Mr.

Mitchell was a patron at a business known as Sally’s, which operated as a car wash

located on the premises. At approximately 3:12 p.m., Mr. Mitchell was shot

without provocation by an unlocated individual and suffered injuries. On October

18, 2016, Mr. Mitchell filed suit naming as defendants, Randy Terry, Claire

Prymus, Ben D. Johnson, LLC, ABC Insurance Company, and XYZ Insurance

Company as the alleged owners/operators of Sally’s and their insurers.

The petition asserted that Mr. Mitchell’s injuries were the direct result

of defendants’ negligence and failure to:

A. Provide adequate warning of criminal activity in the
near vicinity of the property that has occurred that
defendant[s] knew or should have known to visitors
to enable visitors, petitioner in particular, to avoid the
harm or otherwise to protect them against it;

B. Provide security to protect petitioner from assaults by
third person[;]

C. Exercise reasonable care to protect the petitioner
from injury when the defendants knew or should
have known and failed to take adequate and timely
action to prevent the same;

D. Cure a dangerous condition about which it knew or
should have known

E. Provide security cameras and/or signs indicating
video surveillance.

The petition was amended on March 14, 2018 and again on November 2, 2018, to

add Justin Terry as a defendant, and to add additional claims against the named

defendants.

Defendants filed exceptions to Mr. Mitchell’s original and amended

petitions. After multiple continuances, the exceptions were heard on March 26,

2019. The trial court denied the exceptions and the judgment was signed April 10,

2019. On August 15, 2019, the parties held a 10.1 conference, and on August 30,

2019, Defendants sent responses to interrogatories and requests for production of

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documents propounded by Mr. Mitchell in April 2018. On the same date, they

filed a motion for summary judgment. Due to funding issues with the clerk of

court, Mr. Mitchell was not served with the motion for summary judgment until

October 9, 2019. The hearing on the motion was set for October 30, 2019. After

discussion with counsel for Mr. Mitchell, Defendants indicated they would agree to

a very short continuance if reset for one of two dates given by the trial court.

These dates were rejected by Mr. Mitchell.

On October 17, 2019, two days after the deadline for Mr. Mitchell to

file his opposition to the motion for summary judgment, Mr. Mitchell filed a

motion for continuance. Mr. Mitchell argued that he had not been timely served

with notice of the hearing date on the motion for summary judgment and needed

time to conduct adequate discovery in order to oppose Defendants’ motion. A

hearing was held on the motion for continuance on October 28, 2019. The trial

court denied the motion and a judgment on the ruling was signed on December 13,

2019. Mr. Mitchell then filed a writ with the Louisiana Third Circuit Court of

Appeal on the denial of the motion for continuance, and the hearing for the motion

for summary judgment was stayed. The writ was denied as untimely on January

28, 2020.

The hearing on the motion for summary judgment was reset for May

14, 2020. Mr. Mitchell filed his opposition to the motion for summary judgment

on April 29, 2020 and Defendants filed a motion to strike plaintiff’s opposition and

an alternative reply memorandum. At the hearing on May 14, 2020, the trial court

denied the motion to strike and allowed consideration of Mr. Mitchell’s opposition.

After argument and reviewing the evidence, the trial court granted the motion for

summary judgment finding that Defendants properly supported their motion for

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summary judgment and Mr. Mitchell failed to submit any evidence to raise a

genuine issue of material fact. The judgment was signed June 26, 2020 and Mr.

Mitchell filed this appeal on June 12, 2020 which was granted on June 17, 2020.

III.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, applying the

same criteria that govern the trial court’s determination of whether summary

judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591

So.2d 342 (La.1991). A motion for summary judgment shall only be granted when

there are no genuine issues of material fact and the mover is entitled to judgement

as a matter of law. La.Code Civ.P. art. 966(A)(3).

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

La.Code Civ.P. art. 966(D)(1).

IV.

LAW AND DISCUSSION

Motion for Continuance

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Mr. Mitchell asserts that the trial court erred by denying his motion

for continuance prior to the original hearing for summary judgment. Louisiana

Code of Civil Procedure Article 966(C)(2) provides that, “[f]or good cause shown,

the court may order a continuance of the hearing.” Thus, the trial court has been

given discretion to grant or deny a continuance and we will not disturb the trial

court’s ruling absent a showing of abuse of that discretion. Colomb v. State Farm

Ins. Cos., 02-1279 (La.App. 3 Cir. 3/5/03), 839 So.2d 1121.

In support of the motion for continuance, Mr. Mitchell contended that

the motion be granted because he had not yet completed adequate discovery to

respond to the motion. Regarding discovery, the trial court held that there was

nothing the court had done which prevented either party from conducting

discovery, and there had been an adequate opportunity for discovery in the three

years since the suit was filed. If Mr. Mitchell was unsatisfied with Defendants’

answers to propounded discovery, he had remedies under the law, such as filing

motions to compel, which were not used.

Mr. Mitchell also sought a continuance because he was not timely

served notice of the hearing for the motion for summary judgment. As the trial

court has noted, the issues of time requirements in this case are “very

complicated.” Louisiana Code of Civil Procedure Article 966(C)(1) provides that

notice of the hearing date for the motion for summary judgment shall be served on

all parties not less than thirty days prior to the hearing. The original hearing was

set for October 30, 2019, but Mr. Mitchell was not served until October 9, 2019.

The trial court acknowledged that due to a delay in the clerk of court’s office, Mr.

Mitchell was not timely served with notice of the hearing for summary judgment.

Louisiana Code of Civil Procedure Article 966(B)(2) provides that any opposition

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to the motion shall be filed not less than fifteen days prior to the hearing. Mr.

Mitchell filed his motion for continuance on October 17, 2019, two days after the

deadline to timely file his opposition.

Regarding the untimely service on Mr. Mitchell, the trial court found

that Mr. Mitchell had notice of the motion for summary judgment which was

mailed and emailed to Mr. Mitchell by Defendants on August 30, 2019. Although

La.Code Civ.P.art. 966 mandates, through the use of the word “shall,” that service

be made no less than thirty days prior to the hearing, the trial court found that Mr.

Mitchell could have contacted the court from the time he was served on October 9,

2019 until October 15, 2019, when the opposition was due, in order to ask for

additional delays. However, there was no contact until the motion for continuance

filed on October 17, 2019, two days after the deadline.

The trial court held that once the deadlines for filing an opposition had

passed, they cannot be revived by a motion and order for continuance. See

Newsome v. Homer Mem'l Med. Ctr., 10-0564 (La. 4/9/10), 32 So.3d 800 (holding

that the trial court abused its discretion in granting the motion for continuance

solely to allow plaintiff’s expert’s affidavit to be filed in compliance with Article

966); Lewis v. Old Republic Ins. Co., 17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d

557 (holding that trial court had no discretion to allow the late filing of an

opposition without the agreement of all parties). Thus, the trial court found that

there was not good cause shown to grant a continuance. We do not find that the

trial court abused its discretion in denying the motion for continuance.

Additionally, given that the hearing for the motion for summary

judgment was ultimately delayed until May 14, 2020, and Mr. Mitchell was

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allowed to file an opposition before that hearing, we find that any issue with the

trial court’s denial of the motion for continuance has been rendered moot.

Sufficiency of Evidence

Mr. Mitchell contends that the trial court erred in granting the motion

for summary judgment with insufficient evidence. According to Mr. Mitchell, the

only evidence offered by Defendants was an “expired lease agreement” and two

“self-serving” affidavits executed by Claire Prymus. Since Defendants would not

bear the burden at trial, they were only required to prove the absence of factual

support for one or more elements essential to Mr. Mitchell’s claim. Mr. Mitchell

claims that he suffered injuries due the Defendants’ negligence. Under Louisiana’s

duty-risk analysis for negligence, a plaintiff must prove:

(1) the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) the defendant’s
conduct failed to conform to the appropriate standard (the
breach element); (3) the defendant’s substandard conduct
was a cause in fact of the plaintiff’s injuries (the cause-
in-fact element); (4) the defendant’s substandard conduct
was a legal cause of the plaintiff’s injuries (the scope of
liability or scope of protection element); and (5) the
actual damages (the damages element).

Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627,

633. Defendants contend that the necessary elements missing in this case are the

existence of a duty, breach of a duty, and causation.

A threshold issue in any negligence action is whether the defendant

owed the plaintiff a duty, which is a question of law. Id. Mr. Mitchell asserts that

Defendants are liable as owner/operators of Sally’s, the business he was

patronizing when he was shot by a third party. Generally, business owners have no

duty to protect others from the criminal acts of third persons. Pinsonneault v.

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Merchants & Farmers Bank & Tr. Co., 01-2217 (La. 4/3/02), 816 So.2d 270.

However, they do have a duty to implement reasonable measures to protect their

patrons from criminal acts when those acts are foreseeable. Id. This duty does not

extend to a lessor who “owes no duty to guests or invitees of its lessee, to protect

them against misconduct of third persons in the absence of an assumed duty by the

owner/lessor to provide security.” Hodge v. Liquid Ventures, 93-902 (La.App. 3

Cir. 3/2/94), 634 So.2d 1337, 1339.

Defendants allege that they owed no duty to Mr. Mitchell because

they are not owners/operators of Sally’s but are merely the lessors of the property

which has been leased. In support of their motion for summary judgment,

Defendants submitted affidavits of Ben D. Johnson, LLC and Claire Prymus.

Attached to the affidavit of Ms. Prymus was a written commercial lease agreement

between Ben D. Johnson, LLC and Justin Terry. The lease was signed December

2, 2013 with a term of one year. Although the written agreement expired, both

affidavits assert that the lease was still in full effect at the time of Mr. Mitchell’s

shooting.

Louisiana Code of Civil Procedure Article 966(A)(4) provides that

“[t]he only documents that may be filed in support of or in opposition to the

motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions.” “If

the mover has made a prima facie showing that the motion should be granted, the

burden shifts to the non-moving party to present evidence demonstrating that a

material factual issue remains.” Jones v. Estate of Santiago, 03-1424, p. 5 (La.

4/14/04), 870 So.2d 1002, 1006. Based on the affidavits submitted by Defendants,

Defendants were merely the lessors of the premises where Mr. Mitchell was shot.

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The affidavits assert that Defendants were not owner/operators of the business nor

had they ever participated in the day-to-day operations of the business. As such,

they have made a prima facie showing that Mr. Mitchell will be unable to prove

that they owed a duty and the burden shifts to Mr. Mitchell to provide evidence

showing a genuine issue of material fact.

Mr. Mitchell provided no evidence that Defendants were

owners/operators of the business as opposed to lessors. He also provided no

evidence that Defendants assumed any duty of security. “The failure of the non-

moving party to produce evidence of a material factual dispute mandates the

granting of the motion.” Id. We find that the evidence submitted reveals that

Defendants owed no duty to Mr. Mitchell. As such, Mr. Mitchell can not meet an

essential element needed to prove his claim and summary judgment is warranted.

Additionally, even assuming there was a duty owed by Defendants,

the record reveals that no evidence of a breach of duty was produced. In their

affidavits, Defendants affirm that they were unaware of any criminal activity in the

area, that the leased location was in a high crime area, or that criminal activity was

foreseeable on the leased premises operating as a carwash. Again, Mr. Mitchell

failed to provide any evidence in support of his opposition which would create a

genuine issue of material fact as to a breach of duty.

Mr. Mitchell also alleges liability pursuant to Louisiana premises

liability law under La.Civ.Code art. 2317.1. In order to prevail on a premises

liability claim, Mr. Mitchell had to prove the following:

(1) that the thing which caused the damage was in the
defendant’s custody or control, (2) that it had a vice or
defect that presented an unreasonable risk of harm, (3)
that the defendant knew or should have known of the
vice or defect, (4) that the damage could have been

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prevented by the exercise of reasonable care, and (5) that
the defendant failed to exercise such reasonable care. If
the plaintiff fails to provide proof any one of these
elements, his/her claim fails.

Riggs v. Opelousas Gen. Hosp. Tr. Auth., 08-591, p. 4 (La.App. 3 Cir. 11/5/08),

997 So.2d 814, 817. Normally, premises liability refers to ruin, vice or defects in

the property such as potholes or defective steps and railings. In this case, Mr.

Mitchell did not produce any evidence to suggest that any such defects existed on

the property itself. Mr. Mitchell asserts that the defective condition consisted of

operating a business in an area that is highly unsafe and allowing the store to

remain open during dark hours without proper lighting and security. However, as

mentioned, the affidavits of Defendants show that they had no knowledge of any

criminal activity in the area or police reports surrounding alleged criminal activity

in the area, and Mr. Mitchell failed to provide any evidence the Defendants knew

or should have known about this dangerous condition. Moreover, even if failure to

close the business at night and provide proper lighting did create a condition of

unreasonable risk of harm, this incident happened in broad daylight and was

clearly not caused by the alleged condition.

Mr. Mitchell also failed to provide evidence sufficient to impose

liability on Claire Prymus individually. Defendants’ affidavits show that Ms.

Prymus is a member of the LLC. Members of an LLC are insulated from liability

for the debts and obligations of the LLC provided by La.R.S. 12:1320(B).

However, La.R.S. 12:1320(D) allows for personal liability of a member when there

is 1) fraud by the member or 2) a breach of professional duty or other negligent or

wrongful act by such person. Mr. Mitchell has not made any allegations of fraud

against Ms. Prymus, nor is there any evidence that Ms. Prymus owed any

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professional duty or committed any negligent act that would subject her to personal

liability.

After reviewing the evidence presented by Defendants, we find that

they successfully made a prima facie showing entitling them to a summary

judgment. Mr. Mitchell failed to provide any evidence to contradict that of

Defendants or create a genuine issue of material fact. Accordingly, we find that

there was sufficient evidence to support Defendants’ motion and the trial court did

not err in granting the motion for summary judgement.

Adequate Discovery

On appeal, Mr. Mitchell contends that the trial court erred in granting

the motion for summary judgment because there was a lack of adequate discovery.

Louisiana Code of Civil Procedure article 966(A)(3) provides that summary

judgment shall be granted “[a]fter an opportunity for adequate discovery”

(emphasis added). Mr. Mitchell claims that adequate discovery had not been

completed since they had only sent out their first set of interrogatories and requests

for documents, and Defendants’ answers were non-responsive. However, the law

does not require that there be adequate discovery, rather there must the opportunity

for adequate discovery. “There is no absolute right to delay action on a motion for

summary judgment until discovery is completed.” Simoneaux v. E.I. du Pont de

Nemours & Co., Inc., 483 So.2d 908, 912 (La.1986). “The only requirement is that

the parties be given a fair opportunity to present their claim. Unless plaintiff

shows a probable injustice, a suit should not be delayed pending discovery when it

appears at an early stage that there is no genuine issue of fact.” Id. at 913. “The

abuse of discretion standard is used to determine whether the trial court allowed

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adequate time for discovery.” Whittington v. QBE Specialty Ins. Co., 12-409, p. 8

(La.App. 3 Cir. 11/7/12), 105 So.3d 797, 803, writ denied, 12-2646 (La. 1/25/13),

105 So.3d 723.

This suit was filed in 2016. The trial court found that in the four years

that have elapsed, both parties had ample opportunity to conduct adequate

discovery. We agree. Mr. Mitchell argues that, as professional courtesy, he

refrained from compelling Defendants to respond to discovery until after the

exceptions were disposed of. Although he agreed to wait to receive answers,

nothing prevented Mr. Mitchell from requesting additional discovery while he

waited. Moreover, the exceptions were disposed of in April 2019. Mr. Mitchell

had over a year to seek additional discovery before the motion for summary

judgment was heard. However, Mr. Mitchell never sought any additional

discovery.

The only discovery propounded by Mr. Mitchell concerned the

banking information of Defendants which Mr. Mitchell alleges would provide

evidence that Claire Prymus pierced the corporate veil and can be held personally

liable. Defendants sent their answers to this discovery in August 2019 in which

they objected to the discovery. Even if Defendants had provided responsive

answers to the propounded discovery, it would not have provided any evidence to

show that Defendants owed a duty which was breached and caused the incident.

Allowing additional time to compel answers would not negate the fact that

Defendants are entitled to summary judgment as a matter of law. Accordingly, we

find that the trial court did not abuse its discretion in moving forward with the

motion for summary judgment.

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V.

CONCLUSION

For the foregoing reasons, we find that trial court did not err in

granting the motion for summary judgment and the judgment of the trial court is

affirmed. Costs of this appeal are assessed to Billy Jeal Mitchell, Jr.

AFFIRMED.

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