Alfred Broussard v. Howard W. Blount

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-544

ALFRED BROUSSARD, ET AL.

VERSUS

HOWARD W. BLOUNT, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 125,114
HONORABLE KEITH R.J. COMEAUX, DISTRICT JUDGE

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CHARLES G. FITZGERALD
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Charles G.
Fitzgerald, Judges.

REVERSED AND REMANDED.

Alicia Johnson Butler
Post Office Box 9097
New Iberia, Louisiana 70562
(337) 967-8487
Counsel for Plaintiff/Appellant:
Alfred Broussard

Jo Ann Nixon
129 West Pershing Street
New Iberia, Louisiana 70560-4494
(337) 369-7437
Counsel for Plaintiff/Appellant:
Trevon Tardy

Mark W. Verret
Stephen G. Collura
Marina Wilson
Allen & Gooch, A Law Corporation
3850 N. Causeway Boulevard, Suite 630
Metairie, Louisiana 70002
(504) 836-5270
Counsel for Defendants/Appellees:
Howard Blount and Autobahn Motor Freight, LLC

FITZGERALD, Judge.

The issue on appeal is whether the trial court erred in granting the defendants’

motion for summary judgment and dismissing the plaintiffs’ general negligence

claims. For the reasons below, we reverse the judgment of the trial court and remand

the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On September 24, 2014, Alfred Broussard and Trevon Tardy jointly filed a

damages suit against several defendants, including Howard Blount and his employer,

Autobahn Motor Freight, LLC d/b/a Autobahn Logistics LTD.

The petition alleged that on December 10, 2013, Broussard was traveling west

in the left lane of U.S. 90 in his pickup truck with Tardy as a passenger; that on the

same date, Blount, while in the course and scope of his employment with Autobahn,

was driving an 18-wheeler traveling west in the right lane of U.S. 90; that suddenly

and without warning, Blount began to merge into the left lane of traffic and collided

into Broussard’s pickup truck; that the collision resulted from the fault and

negligence of Blount; and that Blount caused Plaintiffs to suffer serious personal

injuries and property damage.

Defendants answered the petition, denying all allegations except to admit that

Blount was traveling on U.S. 90 in a truck owned by Autobahn on the date in

question. Defendants asserted as an affirmative defense that Plaintiffs’ injuries were

caused by Broussard’s negligence.

Many years later, on October 4, 2019, Defendants filed a Motion for Summary

Judgment with an accompanying memorandum and other supporting documents. In

response, on November 4, 2019, Plaintiffs filed a memorandum opposing summary

judgment. The hearing on Defendants’ motion was held on November 8, 2019. The

trial court denied the motion, and that ruling was reduced to written Judgment signed

on November 27, 2019. 1

On March 25, 2020, Defendants filed a pleading styled Motion to Re-Set

Summary Judgment and Motion to Dismiss. In support, Defendants filed a

memorandum and other supporting documents with this motion. Plaintiffs

responded on May 26, 2020, by filing a memorandum opposing summary judgment.

The hearing was held on August 5, 2020. The trial court granted Defendants’ motion

and dismissed all of Plaintiffs’ claims with prejudice. A final Judgment was signed

on August 28, 2020. This appeal by Plaintiffs followed.

In their sole assignment of error, Plaintiffs assert that the trial court erred in

granting summary judgment.

LAW AND ANALYSIS

In reviewing the trial court’s decision on a motion for summary judgment, this

court applies the de novo standard of review using the same criteria applied by the

trial court to determine whether summary judgment is appropriate. Samaha v. Rau,

07-1726 (La. 2/26/08), 977 So.2d 880.

“[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.” La.Code

Civ.P. art. 966(A)(3).

The burden of proof in summary-judgment proceedings is set forth in La.Code

Civ.P. art. 966(D)(1), which states:

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 Judgment of November 27, 2019, states: “IT IS ORDERED, ADJUDGED,
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AND DECREED that Defendant[s’] Motion for Summary [Judgment] is hereby DENIED
at this time[.]” (Emphasis in original). Defendants’ first Motion for Summary Judgment
was dismissed, not continued.
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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.

“The only documents that may be filed in support of or in opposition to the

motion [for summary judgment] are pleadings, memoranda, affidavits, depositions,

answers to interrogatories, certified medical records, written stipulations, and

admissions.” La.Code Civ.P. art. 966(A)(4). “The court may consider only those

documents filed in support of or in opposition to the motion for summary judgment

and shall consider any documents to which no objection is made. Any objection to

a document shall be raised in a timely filed opposition or reply memorandum.”

La.Code Civ.P. art. 966(D)(2).

Defendants’ Motion to Re-Set Motion for Summary Judgment and Motion
to Dismiss—What is it?

The Judgment now on appeal was rendered at a hearing on Defendants’

Motion to Re-Set Motion for Summary Judgment and Motion to Dismiss. The name

of the pleading is confusing for two reasons. First, when Defendants filed this

motion on March 25, 2020, there was nothing to refix. As stated previously,

Defendants’ original motion for summary judgment was denied in open court on

November 8, 2019, and that ruling was reduced to written Judgment signed on

November 27, 2019. And second, the Louisiana Code of Civil Procedure does not

recognize a motion to dismiss as a proper procedural vehicle for a litigant to obtain

the dismissal of an opposing party’s claims. Thibodeaux v. Nixon, 03-2502 (La.App.

1 Cir. 11/3/04), 897 So.2d 666.

Nevertheless, we recognize that “[e]very pleading shall be so construed as to

do substantial justice.” La.Code Civ.P. art. 865. We are obligated to look beyond a
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pleading’s caption to determine its substance. Thompson v. Harrington, 99-571

(La.App. 3 Cir. 10/13/99), 746 So.2d 652.

Defendants’ pleading seeks the dismissal of Plaintiffs’ claims by pointing out

in a supporting memorandum that Plaintiffs will not be able to satisfy their burden

of proof at trial. The substance of the pleading mirrors that of a motion for summary

judgment. Thus, we will construe the pleading as Defendants’ second motion for

summary judgment.

Was Summary Judgment Proper in this Case?

Plaintiffs have asserted general negligence claims against Defendants.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose

liability under general negligence principles. Under this analysis, Plaintiffs must

prove five essential elements:

(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).

Walker v. Manitowoc Co., Inc., 17-1014, p. 6 (La.App. 3 Cir. 10/10/18), 259 So.3d

480, 484 (quoting Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06),

923 So.2d 627, 633).

Defendants’ second motion for summary judgment seeks the dismissal of the

negligence claims by attempting to “point out” that Plaintiffs lack factual support

for their claims. Defendants specifically argue that “Plaintiffs cannot satisfy their

burden of proof in the instant suit as [P]laintiffs have failed to demonstrate any

liability and/or causation in the instant matter and further have failed to produce any

expert testimony to establish one or all of the necessary elements of their claim[s].”

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The dispositive issue in this appeal is whether Defendants have satisfied their

initial burden of proof. The initial burden of proof for summary judgment remains

with the mover and shifts to the nonmoving party only after the mover has properly

supported the motion and carried his burden of proof. La.Code Civ.P. art.

966(D)(1).2

The Louisiana Supreme Court addressed the shifting burden of proof on a

motion for summary judgment in Cyprien v. Board of Supervisors ex rel. University

of Louisiana System, 08-1067, p. 5 (La. 1/21/09), 5 So.3d 862, 866 (citations

omitted), explaining as follows:

[T]he burden of producing evidence at the hearing on the motion for
summary judgment is on the mover (normally the defendant), who can
ordinarily meet that burden by submitting affidavits or by pointing out
the lack of factual support for an essential element in the opponent’s
case. At that point, the party who bears the burden of persuasion at trial
(usually the plaintiff) must come forth with evidence (affidavits or
discovery responses) which demonstrates he or she will be able to meet
the burden at trial. Once the motion for summary judgment has been
properly supported by the moving party, the failure of the non-moving
party to produce evidence of a material factual dispute mandates the
granting of the motion.

In this case, La.Code Civ.P. art. 966(D)(1) permits Defendants, as the moving

parties, to “point out” the absence of factual support for one or more essential

2
In 1997, the Louisiana Legislature enacted La.Code Civ.P. art. 966(C)(2).
Subparagraph (C)(2) established the rules regarding burdens of proof in summary judgment
proceedings. In 2015, La.Code Civ.P. art. 966(C)(2) was amended and reenacted as
La.Code Civ.P. art. 966(D)(1). Importantly, the 2015 revisions did not change the law.
Comment (j) to Article 966, from the Revision Comments of 2015, states:

Subparagraph (D)(1) does not change the law. It is consistent with
Section 4 of Acts 1997, No. 483, which declares that “all cases inconsistent
with” Hayes v. Autin, 685 So.2d 691 (La. App. 3d Cir. 1996) are legislatively
overruled. Hayes holds that Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986), correctly states the law for our summary judgment
procedure. In accordance with Celotex and Babin v. Winn-Dixie Louisiana
Inc. 764 So.2d 37 (La. 2000), once the motion for summary judgment has
been properly supported by the moving party, the non-moving party must
produce evidence of the existence of a material factual dispute or
demonstrate that the mover is not entitled to judgment as a matter of law.
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elements of Plaintiffs’ general negligence claims. But the burden of proof is not

shifted to Plaintiffs until Defendants have properly supported their motion and

carried their initial burden of production.

So how must Defendants satisfy their initial burden of production under

La.Code Civ.P. art. 966(D)(1)? For starters, the jurisprudence is clear that the

defendant moving for summary judgment does not carry his initial burden when he

simply points out by motion or brief that there is a lack of factual support for an

essential element of the plaintiff’s claim. As explained in Sheppard v. City of Baton

Rouge, 02-2421, pp. 8-9 (La.App. 1 Cir. 9/17/04), 897 So.2d 25, 30, writ denied, 04-

2566 (La. 1/14/05), 889 So.2d 268:

[W]e conclude that “pointing out” must be more than a bare assertion
in a motion for summary judgment or brief. We also conclude that [the
defendant] has not sufficiently “pointed out” the absence of factual
support with his bare assertions such that the [plaintiffs] were required
. . . to produce factual support showing that they would be able to satisfy
their burden of proof.

In Pugh v. St. Tammany Parish School Board, 07-1856 (La.App. 1 Cir.

8/21/08), 994 So.2d 95, writ denied, 08-2316 (La. 11/21/08), 996 So.2d 1113, the

mother of an injured student filed suit against the school board for inadequate

supervision. On appeal, the first circuit observed:

The School Board attempted to point out to the court that there was an
absence of factual support for an essential element of the plaintiff’s
cause of action by arguing in its memorandum that the plaintiff was
unable to prove that the School Board had the requisite prior notice of
the attack. . . . However, in attempting to meet this burden, the School
Board did not support its motion with any affidavits, depositions, or
other evidence to point out the alleged lack of support for this element
of the plaintiff’s case, nor did it identify those portions of the pleadings
that it believed demonstrated the absence of a genuine issue of material
fact. Instead, the School Board offered mere argument and conclusory
statements in its memorandum contending that it did not have notice.

Id. at 98. In reversing the trial court, the first circuit held that “because the School

Board failed to meet its initial burden of proof, the burden never shifted to the

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plaintiff to show support for his claim. Therefore, the motion for summary judgment

was improperly granted.” Id. at 100.

In Roadrunner Transportation Systems v. Brown, 17-40, p. 7 n.4 (La.App. 4

Cir. 5/10/17), 219 So.3d 1265, 1270 n.4, the fourth circuit also concluded that a

defendant moving for summary judgment “does not carry his initial burden when he

simply ‘points out’ by motion or brief that the plaintiff lacks factual support for any

claim against him.”

In contrast, the defendants in the cases below do more than simply point out

an absence of factual support for their opponent’s claims. For example, in Babin v.

Winn-Dixie Louisiana, Inc., 00-78 (La. 6/30/00), 764 So.2d 37, the plaintiff sued

Winn-Dixie to recover damages for injuries he sustained in a slip-and-fall accident.

Winn-Dixie moved for summary judgment, pointing out that the plaintiff did not

have any evidence of constructive knowledge, which is an essential element of this

type of claim. In support, Winn-Dixie produced an affidavit of its employee on duty

immediately before the accident. The employee stated in her affidavit that she had

inspected the shopping aisle in question ten minutes before the fall and did not see

the alleged condition (toothpick boxes on the floor). The Louisiana Supreme Court

determined that this was sufficient to shift the burden of proof to the plaintiff.

In Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, the plaintiffs filed

a medical malpractice suit against Dr. Rau. In turn, Dr. Rau filed a motion for

summary judgment, pointing out that the plaintiffs lacked the necessary expert

medical testimony to support their claims against him. In support of his motion—to

point out that the plaintiffs lacked expert medical testimony—Dr. Rau relied on the

plaintiffs’ answers to interrogatories and a request for production of documents.

According to the Louisiana Supreme Court:

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Dr. Rau satisfied his initial burden on summary judgment by filing the
motion and attaching the plaintiffs’ discovery responses.

This finding is supported by the interpretation of the standard for
summary judgment outlined by the federal courts in Celotex Corp. v.
Catrett, and adopted by our courts. In Celotex Corp., the Supreme
Court reaffirmed that the party seeking summary judgment

always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of “the pleadings, depositions, answers to
interrogatories, and admissions . . . , together with the
affidavits, if any,” which it believes demonstrate the
absence of a genuine issue of material fact.

Id. at 884-85 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,

2553 (1986) (footnotes omitted)).

In Motton v. Lockheed Martin Corp., 97-204 (La.App. 4 Cir. 12/1/97), 703

So.2d 202, the plaintiff filed a defamation suit against her employer and two co-

employees. The defendants filed a motion for summary judgment, pointing out that

the plaintiff lacked evidence of publication, which is an essential element of

defamation. The defendants used the plaintiff’s deposition to support their motion.

Before deciding the issue on appeal, the fourth circuit provided the following

statement of law:

If the burden of persuasion at trial would be on the non-moving
[sic] party, the party moving for summary judgment may satisfy [his or
her] burden of production in either of two ways. First, the moving party
may submit affirmative evidence that negates an essential element of
the non-moving party’s claim. Second, the moving party may
demonstrate to the court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s
claim.

Id. at 205 (quoting Celotex Corp., 477 U.S. at 331 (original emphasis removed)

(emphasis added)). The fourth circuit concluded that the defendants satisfied their

initial burden by filing the motion and supporting it with the plaintiff’s deposition.

This was sufficient to shift the burden of proof to the plaintiff.

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In the case before us, our review is limited to “only those documents filed in

support of or in opposition to the motion for summary judgment[.]” La.Code Civ.P.

art. 966(D)(2).3 Since Plaintiffs did not file any documents with their opposition

memorandum, we can only consider the documents filed in support of Defendants’

motion; namely, a copy of Plaintiffs’ petition for damages, two discovery motions

and the corresponding judgments, and a petition for intervention filed by Plaintiffs’

former attorney. For the reasons below, these documents are not sufficient to satisfy

Defendants’ initial burden of proof.

First, none of the supporting documents affirmatively negate an essential

element of Plaintiffs’ general negligence claims. Unlike Babin v. Winn-Dixie

Louisiana, Inc., Defendants in this appeal did not attach any affidavits to support

their second motion for summary judgment. Second, the documents do not

demonstrate to this court that Plaintiffs lack sufficient evidence to prove an essential

element of their claims. Defendants argue in their supporting memorandum that

Plaintiffs’ responses to discovery are inadequate to demonstrate any evidence of

causation on Defendants’ part, yet none of the discovery responses are attached to

Defendants’ motion. This is in stark contrast to Samaha v. Rau, where Dr. Rau

satisfied his initial burden by filing the motion for summary judgment and

supporting it with the plaintiffs’ answers to interrogatories. And third, Defendants

failed to identify the portions of their supporting documents that they believe

demonstrate an absence of a genuine issue of material fact.

3
For two cases that address the 2015 revision changes to La.Code Civ.P. art.
966(D)(2), see Gibbs Construction v. National Rice Mill, 17-113 (La.App. 4 Cir. 2/21/18),
238 So.3d 1033, writ denied, 18-464 (La. 5/11/18), 241 So.3d 1012; and Davis v. Hixson
Autoplex of Monroe, L.L.C., 51,991 (La.App. 2 Cir. 5/23/18), 249 So.3d 177. In both cases,
the trial court erred in considering documents in the record other than those filed in support
of or in opposition to the particular motion before it.

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Based on our de novo review, we conclude that Defendants failed to satisfy

their initial burden of production, meaning that the burden of proof never shifted to

Plaintiffs. The trial court erred in granting summary judgment.

DECREE

The judgment granting the motion for summary judgment is reversed, and the

matter is remanded to the trial court for further proceedings. The costs of this appeal

are assessed to Defendants, Howard Blount and Autobahn Motor Freight, LLC d/b/a

Autobahn Logistics LTD.

REVERSED AND REMANDED.

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