Evelyn Burlison v. State Farm Fire and Casualty Company

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-730

EVELYN BURLISON

VERSUS

STATE FARM FIRE AND CASUALTY COMPANY, ET AL

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 99,578
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

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SHARON DARVILLE WILSON
JUDGE

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Court composed of Sharon Darville Wilson, Charles G. Fitzgerald, and Ledricka J.
Thierry, Judges.

AFFIRMED.

R. Scott Iles
Attorney at Law
P. O. Box 3385
Lafayette, LA 70502
(337) 234-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Evelyn Burlison

Lottie L. Bash
Franklin “Drew” Hoffmann
Jordan S. Varnado
Emily R. Fruge
FAIRCLOTH MELTON SOBEL & BASH, LLC
105 Yorktown Drive
Alexandria, Louisiana 71303
(318) 619-7755
COUNSEL FOR DEFENDANT/APPELLEE
Powerhouse Investments, LLC

WILSON, Judge.

Plaintiff, Evelyn Burlison, appeals the judgment of the trial court

granting Defendant’s, Powerhouse Investments L.L.C. (“Powerhouse”), motion for

summary judgment, sustaining its exception of prescription, and dismissing all

claims against Powerhouse. For the reasons expressed below, we affirm the

judgment of the trial court.

I.

ISSUES

On appeal, Ms. Burlison asserts the following assignment

of error:

(1) The trial court erred in granting the motion for
summary judgment of Powerhouse Investments, LLC
thereby dismissing the claims of plaintiff in a civil
action for premises liability in a parking lot where the
plaintiff slipped, fell, and sustained injuries on a
buildup of “gunk” in the parking lot which was neither
“clean” or “well maintained.”

II.

FACTS AND PROCEDURAL HISTORY

On the afternoon of January 13, 2020, Mrs. Burlison arrived at the

Orthopedic Center of Louisiana, located at 500 South Sixth Street, Leesville,

Louisiana. She arrived at the location to retrieve paperwork for her husband. After

attempting to use a side entrance, Mrs. Burlison began walking through the parking

lot to access the public entrance. It had rained previously that day but had stopped

by the time she arrived at the office. While walking across the parking lot, Mrs.

Burlison slipped and fell in “sludge” on the pavement. She then entered the office

and reported the fall. Mrs. Burlison returned to the office on January 14, 2020, and

informed the office manager of her fall and injuries.

On January 11, 2021, Mrs. Burlison filed suit against Orthopedic

Center of Louisiana L.L.C. (“Orthopedic Center”) and its insurer, State Farm Fire

and Casualty Company (“State Farm”). After receiving documents from the named

defendants and discovering the actual owner of the parking lot, on September 1,

2021, Mrs. Burlison filed a First Supplemental and Amending Petition naming

Powerhouse as a defendant. Motions for summary judgment were filed by all

Defendants. The motions were heard on November 18, 2021, and on December 8,

2021, the trial court granted summary judgment in favor of all Defendants,

dismissing Mrs. Burlison’s claims in their entirety.

Mrs. Burlison appealed. This court affirmed the trial court’s granting

of Orthopedic Center and State Farm’s summary judgment motion, but reversed the

granting of Powerhouse’s motion and remanded the matter. See Burlison v. State

Farm Fire & Cas. Co., 22-194 (La.App. 3 Cir. 12/21/22), 354 So.3d 272, writ

denied, 23-71 (La. 4/12/23), 359 So.3d 21. The Louisiana Supreme Court denied

Powerhouse’s writ application.

On May 22, 2023, Powerhouse filed a Peremptory Exception of

Prescription and Alternative Motion for Summary Judgment which was heard by the

trial court on August 28, 2023. On September 1, 2023, the trial court granted the

motion for summary judgment, sustained the peremptory exception of prescription,

and dismissed all claims against Powerhouse with prejudice. Mrs. Burlison now

appeals.

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

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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 judgment as

a matter of law. La.Code Civ.P. art. 966(A)(3). When reviewing a grant of an

exception of prescription, courts apply the manifest error standard if evidence was

adduced, but if no evidence was adduced the de novo standard applies. Arton v.

Tedesco, 14-1281 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, writ denied, 15-1065

(La. 9/11/15), 176 So.3d 1043.

IV.

LAW AND DISCUSSION

On appeal, Mrs. Burlison argues that the trial court erred in granting the

motion for summary judgment because the issues in the motion were already

presented to the trial court, reversed by this court, and writs were denied by the

supreme court. She also argues that the motion should not have been granted

because adequate discovery had not been had.

Mrs. Burlison argued lack of adequate discovery in her prior appeal and

this court noted, “we agree with our brethren of the first circuit that ‘lack of

discovery is grounds for requesting a continuance for a hearing, not an element on

the merits of a motion for summary judgment.’” Burlison, 354 So.3d at 278 (quoting

Ellis v. Louisiana Bd. of Ethics, 14-112, p.14 (La.App. 1 Cir. 12/30/14), 168 So.3d

714,725, writ denied, 15-208 (La. 4/17/15), 168 So.3d 400). Mrs. Burlison failed to

file a motion for continuance to allow for further discovery before the summary

judgment hearing. Accordingly, the trial court did not err in hearing the motion for

summary judgment.

A motion for summary judgment shall only be granted when the

motion, memorandum, and supporting documents show there are no genuine issues

of material fact, and the mover is entitled to judgment as a matter of law. La.Code

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Civ.P. art. 966(A)(3). If the mover will not bear the burden of proof on the issue at

trial, the mover’s burden only requires the mover to “point out to the court the

absence of factual support for one or more elements essential to the adverse party’s

claim[.]” La.Code Civ.P. art. 966(D)(1). Once the mover has successfully done this,

the burden shifts to “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.” Id.

A court must grant a motion for summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions, together with the affidavits, if any, show that
there is no genuine issue of material fact, and that mover
is entitled to judgment as a matter of law, pursuant to LSA-
C.C.P. art. 966(B).

A fact is material if it potentially ensures or
precludes recovery, affects a litigant’s ultimate success, or
determines the outcome of the legal dispute. A genuine
issue of material fact is one as to which reasonable persons
could disagree; if reasonable persons could reach only one
conclusion there is no need for a trial on that issue[,] and
summary judgment is appropriate.

Because it is the applicable substantive law that
determines materiality, whether a particular fact is in
dispute is “material” for summary judgment purposes can
only be seen in the light of the substantive law applicable
to the case.

Jackson v. City of New Orleans, 12-2742, pp. 5-6 (La. 1/28/14), 144 So.3d 876, 882,

cert. denied, 574 U.S. 869, 135 S.Ct. 197 (2014) (citations omitted).

Mrs. Burlison asserted claims under La.Civ.Code arts. 2315, 2317 and

2317.1. Together these articles provide that the owner or person having custody of

immovable property has a duty to keep such property in a reasonably safe condition.

However, an owner is not responsible for injuries resulting from any risk posed

thereby but, rather, only for those injuries caused by an unreasonable risk of harm.

Simon v. CenturyLink, Inc., 21-412 (La.App. 1 Cir. 12/22/21), 340 So.3d 88. Thus,

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whether a defect presents an unreasonable risk of harm is an essential element of

Mrs. Burlison’s claim.

The instant motion is Powerhouse’s second motion for summary

judgment in this case. Powerhouse made the same arguments in both motions. In

the prior motion, Powerhouse adopted the arguments of Orthopedic Center and State

Farm’s motion which argued that the complained of condition was “open and

obvious” and, therefore, not unreasonably dangerous. The trial court agreed and

granted the motions for summary judgment. After Mrs. Burlison appealed, this court

affirmed the granting of Orthopedic Center and State Farm’s motion. This court

relied on Mrs. Burlison’s interrogatories and a photograph of the parking lot

authenticated by Mrs. Burlison. Mrs. Burlison stated, “I slipped and fell down in the

parking lot. The lot had a thick mold/sludge.” There was no allegation made that

the condition was a hidden hazard that was not visible or avoidable using ordinary

caution. This court specifically noted:

A review of the photograph clearly reflects the visible
mud or sludge that she asserted was unreasonably
dangerous. However, it is also clearly open and obvious
to all by the use of ordinary care. This is especially true
on a day that it has been raining, which Plaintiff alleged
in her petition and acknowledged in her discovery
responses.

Burlison, 354 So.3d at 281.

Thus, this court found that the evidence pointed out an absence of

factual support for an element essential to Mrs. Burlison’s claim. The burden then

shifted to Mrs. Burlison to establish the existence of material facts in dispute or that

Defendants were not entitled to judgment as a matter of law. As Mrs. Burlison only

offered evidence related to the allegations of lack of adequate time for discovery,

and those offerings were ruled inadmissible, she failed to meet her burden of proof.

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In her brief, Mrs. Burlison points out that while the granting of

Orthopedic Center and State Farm’s motion was affirmed, the granting of

Powerhouse’s motion was reversed. She then argues that the matter involves the

same argument, and the actions in the appellate court should be the same. Mrs.

Burlison fails to consider the reasoning for this court’s reversal of Powerhouse’s

prior motion for summary judgment.

Mrs. Burlison is correct in that the argument is the same; however, this

court did not reverse the granting of Powerhouse’s motion on substantive grounds.

In the prior motion, Powerhouse attempted to incorporate and adopt the exhibits of

the other defendants into its own motion but failed to actually attach these exhibits.

This court reasoned,

Thus, despite its attempt to incorporate and adopt Defendants’ exhibits
into its own motion, the only evidence we may consider relative to Powerhouse’s
motion is Plaintiff's first supplemental and amending petition. However, as that
petition only alleged that Powerhouse, as the owner of the property, was responsible
for the “maintenance, upkeep and repair of the property during the pendency of”
OCL’s lease, we find that Powerhouse has failed to point out an absence of factual
support for an essential element of Plaintiff's claim. Thus, the burden of proof never
shifted to Plaintiff to prove that the condition of the parking lot was unreasonably
dangerous. Accordingly, the judgment of the trial court granting summary judgment
in favor of Powerhouse is reversed, and the matter is remanded to the trial court for
further proceedings.

Id. at 282-83.

Rather than requiring a reversal in the instant case, the prior opinion of

this court requires an affirmation. This court has already found that the condition

was open and obvious and, thus, not unreasonably dangerous. This finding was

based on the statements of Mrs. Burlison and the authenticated photo of the parking

lot. The referenced photo is attached to Powerhouse’s second motion for summary

judgment. The law of the case doctrine refers to “(a) the binding force of trial court

rulings during later stages of the trial, (b) the conclusive effects of appellate rulings

at the trial on remand, and (c) the rule that an appellate court will ordinarily not

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reconsider its own rulings of law on a subsequent appeal in the same case.” Petition

of Sewerage & Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). The policy

reasons behind this doctrine are “the avoidance of indefinite relitigation of the same

issue; the desirability of consistency of the result in the same litigation; and the

efficiency, and the essential fairness to both sides, of affording a single opportunity

for the argument and decision of the matter at issue.” Id.

Applying the law of the case doctrine, Powerhouse has satisfied its

burden, and the burden shifts to Mrs. Burlison to establish the existence of material

facts in dispute or that Powerhouse is not entitled to judgment as a matter of law. As

in the prior appeal, Mrs. Burlison failed to present any proof establishing that the

condition of the parking lot was not open and obvious. The sole attachment offered

by Mrs. Burlison is an affidavit by her attorney referencing correspondence and

emails related to discovery. This court addressed Mrs. Burlison’s discovery-related

arguments in the prior appeal and found she failed to establish the existence of a

genuine issue of material fact. The same is true in the instant appeal. Accordingly,

we affirm the trial court’s grant of summary judgment in favor of Powerhouse.

In her brief, Mrs. Burlison includes a section addressing the peremptory

exception of prescription noting that Powerhouse was added once their ownership

of the subject property was discovered. However, Mrs. Burlison failed to include an

assignment of error regarding the exception of prescription. Uniform Rules—Courts

of Appeal, Rule 1–3 provides, “the Courts of Appeal shall review issues that were

submitted to the trial court and that are contained in specifications or assignments of

error, unless the interest of justice requires otherwise.” Thus, Mrs. Burlison did not

properly raise this issue for appeal.

Nonetheless, we find that the trial court properly sustained the peremptory

exception of prescription. The subject accident occurred on January 13, 2020.

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Delictual actions have a one-year prescriptive period. La.Civ.Code art. 3492.

Powerhouse was not added to the suit until September 1, 2021, well past the one-

year prescriptive period. Thus, the claim was prescribed on its face and the burden

shifted to Mrs. Burlison to prove suspension or interruption. In the amended

petition, Mrs. Burlison asserted that Powerhouse was solidarily liable with the other

defendants. The interruption of prescription against one solidary obligor is effective

against all solidary obligors. La.Civ.Code art. 1799. However, the other defendants

were found not liable on December 8, 2021, when their motion for summary

judgment was granted and they were dismissed. Their dismissal was affirmed by

this court. “Filing suit against a party who is later determined to be without

obligation to the plaintiff does not interrupt prescription against a purported solidary

obligor who was not timely sued.” Etienne v. Nat’l Auto. Ins. Co., 99-2610, p. 7 (La.

4/25/00), 759 So.2d 51, 56. Consequently, prescription against Powerhouse was not

interrupted, and Powerhouse’s exception of prescription was properly sustained.

V.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed to Plaintiff/Appellant, Evelyn Burlison.

AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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