Jennifer Williams v. Louie Street Apartments, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-0241

JENNIFER WILLIAMS

VERSUS

LOUIE STREET APARTMENTS, INC.

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ON WRIT OF CERTIORARI FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU
DOCKET NUMBER 2015-4260-F
HONORABLE SHARON DARVILLE WILSON, JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Joshua K. Trahan
Sarah E. Stevens
JUNEAU DAVID, APLC
The Harding Center
1018 Harding Street
Suite 202
Lafayette, Louisiana 70503
Telephone: (337)269-0052
Facsimile: (337)269-0061

COUNSEL FOR DEFENDANT/APPLICANT:
Louie Street Apartments, Inc.

Jere Jay Bice
Julis Love Taylor
Veron, Bice, Palermo & Wilson, L.L.C.
721 Kirby Street
P.O. Box 2125
Lake Charles, Louisiana 70602
Telephone: (337) 310-1600
Facsimile: (337) 310-1601

COUNSEL FOR PLAINTIFF/RESPONDENT:
Jennifer Williams

CONERY, Judge,

The Defendant-Relator, Louie Street Apartments, Inc. (hereinafter

sometimes referred to as the Corporation), seeks supervisory writs from the

judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the

Honorable Sharon Darville Wilson presiding, which denied the Corporation’s

motion for summary judgment. For the following reasons, the Corporation’s writ

is granted and made peremptory. All claims made against the Corporation by

Plaintiff/Respondent Jennifer Williams are dismissed with prejudice. All costs are

assessed to Plaintiff/Respondent Jennifer Williams.

STATEMENT OF THE CASE
Plaintiff/Respondent, Jennifer Williams, was injured when a picnic table

bench seat collapsed, causing her to fall to the ground. The bench was located on

the grounds of a housing project called the Louie Street Apartments. The

Corporation owns the property on which the bench was located. However, the

apartments and grounds are managed and maintained by the Calcasieu Association

for Retarded Citizens (CARC), for whom Ms. Williams was working at the time of

the accident.

Ms. Williams filed suit against the Corporation based on its ownership of the

property on which the bench was located. The Corporation filed the subject

motion for summary judgment contending that Ms. Williams could not recover

against it. The Corporation claims that, although it owns the property, it did not

own the bench. The Corporation notes that CARC manages the property and

maintains it. The Corporation also pointed out that CARC purchased the bench

and assembled it. Therefore, the Corporation claimed that it could not be held

accountable for Ms. Williams’s injuries.

A hearing on the motion for summary judgment was held by the trial court

on February 6, 2017. At the conclusion of the hearing, the trial court denied the

motion. The court minutes state that the trial court would sign a written judgment

upon presentation, although the transcript does not contain this statement. The

Corporation filed a Notice of Intention to Apply for Supervisory Writs and Request

to Set a Reasonable Return Date on February 15, 2017. Also, on this same date,

the Corporation filed a request for written reasons for judgment to be issued

Not having received a signed order setting the return date, among other

things, the Corporation filed a motion for an extension of the return date on March

1, 2017.

When neither an order setting the original return date nor an order setting the

extension of the return date was received by the Corporation, the Corporation sent

to this court its Motion to Extend Return Date to File an Application for

Supervisory Writ, docketed by this court as CM 17-240, and its Application for

Supervisory Writ, docketed by this court as CW 17-241. Although the date stamp

from this court’s clerk’s office indicates that these items were filed on March 9,

2017, in actuality, the items were received by this court bearing a postmark date of

March 8, 2017.1 A letter from this court’s clerk’s office notifying the parties and

the trial court of the writ application’s filing states that the writ “has been received

and filed, as of the postmark date of March 8, 2017.”

Since these initial filings, several supplemental filings have been made by

the Corporation, including the transcript of the February 6, 2017 hearing; the

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The thirtieth day from the hearing held on February 6, 2017, was March 8, 2017.

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written reasons signed by the trial court on March 10, 2017, in which the trial court

denies the motion for summary judgment; an order signed by the trial court on

February 27, 2017, which set the original return date for the filing of the writ

application for March 6, 2017; and an order signed by the trial court on March 10,

2017, extending the return date for the filing of the writ application to April 6,

2017.

CM 17-240 MOTION TO EXTEND RETURN DATE TO FILE AN
APPLICATION FOR SUPERVISORY WRIT

This court denies the motion for extension of return date as moot. A review

of the pleadings filed by the Corporation in the trial court clearly reflects the

Corporation’s good faith attempts to obtain the timely setting of a return date for

the filing of a writ application. The original request was filed with the trial court

within a few days of the hearing held February 6, 2017, and the request for the

setting of the return date was filed February 15, 2017. When the Corporation had

not received an order setting the return date by the end of February, the

Corporation filed a request for an extension of the return date on March 1, 2017,

which was also within thirty days of the hearing on the motion for summary

judgment and was filed prior to the expiration of the return date initially set by the

trial court.

Ultimately, the trial court signed an order setting the initial return date for

March 6, 2017. By that time, the Corporation had already filed its motion for an

extension of the return date with the trial court. When the extension was signed,

the trial court had extended the return date to April 6, 2017. By that date, the

Corporation had filed its writ application with this court and filed its motion for an

extension of the return date with this court. This court finds that the writ

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application was timely filed and denies the motion for extension of the return date

as moot.

On May 9, 2017, this court issued an Order in Docket Number 17-0241,

stating:

WRIT GRANTED. Defendant-Realtor, Louie Street Apartments,
Inc., is hereby given until May 23, 2017, to file any additional brief, if
desired. Plaintiff-Respondent, Jennifer Williams is hereby given
until May 30, 2017, to file any additional brief, if desired. If a party
desires to have oral argument in this matter, the moving party may file
a motion, with the appropriate filing fee, stating the reasons why oral
argument is necessary in this case, by no later than May 23, 2017.

No additional briefs were filed and neither of the parties requested oral

argument. We will, therefore, address the merits of the writ in this opinion.

SUPERVISORY RELIEF
A court of appeal has plenary power to exercise supervisory
jurisdiction over trial courts and may do so at any time, according to
the discretion of the court. In cases in which a peremptory exception
has been overruled by the trial court, the appellate court appropriately
exercises its supervisory jurisdiction when the trial court's ruling is
arguably incorrect, a reversal will terminate the litigation, and there is
no dispute of fact to be resolved. In such instances, judicial efficiency
and fundamental fairness to the litigants dictate that the merits of the
application for supervisory writs should be decided in an attempt to
avoid the waste of time and expense of a possibly useless future trial
on the merits. Herlitz Const. Co., Inc. v. Hotel Investors of New
Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam). This supervisory
jurisdiction may also be exercised to reverse a trial court's denial of a
motion for summary judgment and to enter summary judgment in
favor of the mover. See Hoover v. Livingston Bank, 451 So.2d 3
(La.App. 1st Cir.1984); Bonfiglio v. Bellsouth Advertising and Pub.
Corp., 619 So.2d 135 (La.App. 1st Cir.), writ denied, 620 So.2d 864
(La.1993).
Charlet v. Legislature of State of La., 97-0212, pp. 6-7 (La.App. 1 Cir.

6/29/98), 713 So.2d 1199, writs denied, 98-2023, 98-2026 (La. 11/13/98),

730 So.2d 934.

In her opposition filed in this court, Ms. Williams contends that this court

should decline to exercise its supervisory jurisdiction as there are “no compelling

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writ grant considerations.” We disagree. This court finds merit to the

Corporation’s motion for summary judgment. Should Ms. Williams’ suit be

dismissed, the Corporation will have avoided incurring the expenses of preparing

and going through trial. Therefore, there are valid reasons for considering the

merits of the Corporation’s writ application.

ON THE MERITS
Standard of Review

A trial court’s disposition of a motion for summary judgment is
reviewed using the de novo standard of review “under the same
criteria governing the trial court’s consideration of whether summary
judgment is appropriate.” D’Angelo v. Guarino, 10-1555, p. 3
(La.App. 4 Cir. 3/9/12), 88 So.3d 683, 686, writ denied, 12-0746 (La.
5/18/12), 89 So.3d 1196 (citing Wilson v. Calamia Constr. Co., 11-
0639, p. 3 (La.App. 4 Cir. 9/28/11), 74 So.3d 1198, 1200). In
determining whether summary judgment is appropriate, a court must
resolve the following two issues: (i) whether there is any genuine
issue of material fact; and (ii) whether the mover is entitled to
judgment as a matter of law. Warren v. Kenny, 10-1580, pp. 5-6
(La.App. 4 Cir. 4/27/11), 64 So.3d 841, 845-846 (citing Ocean Energy,
Inc. v. Plaquemines Parish Government, 04-0066, p. 5 (La. 7/6/04),
880 So.2d 1, 5).

Brown v. Diagnostic Imaging Services, Inc., 15-207, p. 3 (La.App. 4 Cir. 8/12/15),
173 So.3d 1168, 1169.

Louisiana Civil Code Articles 2317 and 2317.1 provide the law governing

this case. Louisiana Civil Code Article 2317 provides, “[w]e are responsible, not

only for the damage occasioned by our own act, but for that which is caused by the

act of persons for whom we are answerable, or of the things which we have in our

custody. This, however, is to be understood with the following modifications.”

Louisiana Civil Code Article 2317.1 also provides in the case of a thing

owned by or in the custody of an individual, or in this case a corporation:

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the

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ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care. Nothing in this Article shall
preclude the court from the application of the doctrine of res ipsa
loquiture in an appropriate case.

Thus, among the elements Ms. Williams must prove in order to recover from

the Corporation is that the Corporation had custody or garde of the bench at issue

in this matter. The Corporation argues that it has produced evidence to show that it

did not have custody or garde of the subject bench, thereby shifting the burden to

Ms. Williams to show that the Corporation did have custody or garde. The record

reflects that Ms. Williams failed to introduce any evidence contrary to that

submitted by the Corporation. Therefore, the Corporation contends that the trial

court erred in failing to grant its motion for summary judgment.

Among the items submitted by the Corporation in support of its motion for

summary judgment were portions of the deposition testimony of Bennett McNeal,

the assistant executive director of CARC, whose duties include “overseeing the

community homes, CARC’s community services department, CARC’s vocational

department, anything that provides services directly to CARC’s recipients that is

not administration.” He explained the creation of the Corporation as follows:

CARC had to buy the property or have the property in hand in order to
apply for the grant from HUD to build the apartments. Once the
apartments were built, the property, the ground, was sold to Louie
Street Apartments. So there had to be a separate 501 (C) (3)
organization, Louie Street Apartments, Inc., separate from CARC to
actually own the complex. That is a HUD regulation, so that’s why
CARC does not directly own anything -- any of the real property.

Mr. McNeal also explained that Louie Street Apartments, Inc. is a

completely separate corporation from CARC, with its own board of directors.

Additionally, he explained that the Corporation has no employees, with CARC

serving as the managing agent of the apartments.

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Mr. McNeal attested that CARC purchased the bench that caused Ms.

Williams’ injuries. When asked “who was solely responsible for the maintenance

and upkeep of the property at Louie Street,” he responded, “CARC.” He added

that the particular bench at issue would have been assembled by CARC’s

maintenance people.

Thus, as noted by the Corporation, CARC owned and assembled the bench

and was solely responsible for maintaining the property and the bench.

Furthermore, as noted by the Corporation, Ms. Williams failed to introduce any

countervailing evidence. Instead, Ms. Williams argued that as a matter of law,

since the Corporation owns the property, it must be found to be responsible for this

bench. We disagree.

Ms. Williams relies heavily on Leblanc v. Trappey, 02-1103 (La.App. 3 Cir.

2/5/03), 838 So.2d 860, writs denied, 03-651, 03-684 (La. 5/2/03), 842 So.2d 1107,

842 So.2d 1109, which notes that the owner of the property is presumed to be in

the custody of and to have garde over all things on the property. We find that her

argument is not persuasive in this instance because the Corporation introduced

evidence supporting its claim of lack of ownership of the bench and lack of garde.

CARC was the owner and maintained the bench and the property. As pointed out

by the Corporation, Ms. Williams adduced no proof that contradicts the evidence

submitted by the Corporation. Since there are no material facts in dispute, we

grant the motion for summary judgment and dismiss Ms. Williams’ suit with

prejudice.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s denial of the motion

for summary judgment and enter summary judgment in favor of the Louie Street

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Apartments, Inc. The plaintiff Jennifer Williams’ claims against Louie Street

Apartments, Inc. are dismissed with prejudice. All costs of this proceeding are

assigned to the plaintiff, Jennifer Williams.

WRIT GRANTED AND MADE PEREMPTORY.

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