Opinion
2021 CW 0915
02-25-2022
CHARLES VERRETT, KASHONDA VERRETT IOBO MALAYSIA VERRETT v. CLEMENTS AND BROUSSARD SUGAR FARM LLC, THE ESTATE OF LENIS CLEMENTS SR., THE BURLINGTON INSURANCE COMPANY, METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, AND LYNDON SOUTHERN INSURANCE COMPANY
J. Scott Loeb Attorneys for Defendants/Appellants Cynthia M. Bologna Clements and Broussard Sugar Farm, Mandeville, Louisiana LLC, and The Burlington Insurance Co. Pride J. Doran Attorneys for Plaintiffs/Appellees Quincy L. Cawthorne Charles Verrett, Kashonda Verrett Opelousas, Louisiana individually and on behalf of Malaysia Verrett.
APPEALED FROM THE 16th JUDICIAL DISTRICT COURT, DIVISION H ST. MARY PARISH, LOUISIANA DOCKET NUMBER 132, 996 HONORABLE ROGER P. HAMILTON JR., JUDGE
J. Scott Loeb Attorneys for Defendants/Appellants Cynthia M. Bologna Clements and Broussard Sugar Farm, Mandeville, Louisiana LLC, and The Burlington Insurance Co.
Pride J. Doran Attorneys for Plaintiffs/Appellees Quincy L. Cawthorne Charles Verrett, Kashonda Verrett Opelousas, Louisiana individually and on behalf of Malaysia Verrett.
BEFORE: McDONALD, LANIER, WOLFE, JJ.
McDonald, J.
A limited liability company and its insurer appeal the denial of their motion for summary judgment on the issue of vicarious liability. After review, we convert the appeal to a supervisory writ, grant the writ, and reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On June 4, 2018, Kashonda Verrett was driving her Nissan Altima southbound on La. Hwy. 87 in Charenton, Louisiana, with guest passengers Charles Verrett and Malaysia Verrett, when she collided with an all-terrain vehicle (ATV) being driven by Lenis Clement, Sr. Mr. Clement was crossing over La. Hwy. 87 from Clement Achee Lane when the accident occurred. He died later that day from injuries sustained in the accident.
On October 11, 2018, Ms. Verrett and Mr. Verrett filed suit, individually and on behalf of Malaysia Verrett, against Mr. Clement's estate; Metropolitan Property and Casualty Insurance Company (Metropolitan), Mr. Clement's homeowner's insurer; Clements and Broussard Sugar Farm, LLC (C&B), a company for which Mr. Clement previously had served as president; The Burlington Insurance Company (Burlington), C&B's commercial general liability insurer; and, Lyndon Southern Insurance Company (Lyndon), Ms. Verrett's automobile insurer. The plaintiffs alleged the defendants were solidarity liable for their damages caused by Mr. Clement's negligence. They further alleged C&B owned the ATV Mr. Clement was driving and was vicariously liable for Mr. Clement's negligence as he was "on a mission and acting in the interest of" C&B.
Ms. Verrett later settled with Lyndon and the trial court signed an order dismissing her individual claims against Lyndon with prejudice. The plaintiffs' claims against Metropolitan are not at issue herein.
C&B and Burlington answered the petition, denying that C&B owned the ATV, denying that Burlington provided coverage for the ATV or for any of plaintiffs' alleged damages, and stating that Mr. Clement was not a C&B employee on the date of the accident, nor was he performing any task, errand, job, or mission for C&B at that time. Later, C&B and Burlington (the C&B defendants) filed a motion for summary judgment seeking dismissal of the plaintiffs' claims against them. The C&B defendants asserted the plaintiffs' claims against them, premised on vicarious liability, failed as a matter of law, because Mr. Clement, C&B's former president, had been retired from the company for more than a decade. Arguing the absence of the requisite employment relationship required for vicarious liability, the C&B defendants asserted that the plaintiffs' claims against them could not stand. They also repeated that C&B did not own the ATV and Mr. Clement was not on a mission for C&B at the time of the accident. In support of their motion for summary judgment, the C&B defendants filed the affidavit and a deposition excerpt of Michael Broussard, Mr. Clement's son-in-law and current C&B president; the petition; a deposition excerpt of Ms. Verrett; and, a deposition excerpt of Wanda Broussard, Mr. Clement's daughter.
The plaintiffs opposed the motion claiming there were genuine issues of material fact as to Mr. Clement's employment status with C&B and as to C&B's ownership of the ATV. The plaintiffs filed no evidence in support of their opposition.
The trial court held a hearing on the motion, and at the end of the hearing, ruled that outstanding credibility determinations precluded summary judgment in the C&B defendant's favor. On April 5, 2021, the trial court signed a judgment denying the C&B defendant's motion for summary judgment and designating the judgment as a final and appealable judgment. The C&B defendants appeal.
APPELLATE JURISDICTION
We first address the basis of our subject matter jurisdiction to review the judgment appealed herein. A judgment denying a motion for summary judgment is a non-appealable, interlocutory judgment. See La. C.C.P. art. 968; Johnson v. C's Transp. Svces., LLC, 20-0338 (La.App. 1 Cir. 8/4/21), 2021 WL 3418693, *1. An application for supervisory writs is the proper procedural vehicle to challenge an interlocutory judgment. Johnson, 2021 WL 3418693 at *1. We have the discretion to exercise our supervisory jurisdiction and treat the appeal of an interlocutory judgment as an application for supervisory writs. Id. This supervisory jurisdiction may 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. Charlet v. Legislature of State of La., 97-0212 (La.App. 1 Or. 6/29/98), 713 So.2d 1199, 1202. Here, we exercise that supervisory jurisdiction over the April 5, 2021 interlocutory judgment, because the C&B defendants filed their motion for appeal within the 30-day time period allowed for the filing of an application for supervisory writs under La. C.C.P. art. 1914 and URCA Rule 4-3, and reversal of the trial court's decision will terminate this litigation as to the C&B defendants. Courville v. Allied Prof. Ins. Co., 16-1354 (La.App. 1 Cir. 4/12/17), 218 So.3d 144, 147; see also Herlitz Const. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) (per curiam).
DISCUSSION
In their assignments of error, the C&B defendants contend the trial court erred in denying summary judgment to them because: (1) the plaintiffs produced no evidence to establish the existence of a genuine issue of material fact, and (2) there are no credibility issues that bar summary judgment dismissal of plaintiffs' claims against them.
Appellate courts review the grant or denial of summary judgment de novo under the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Jefferson v. Nichols State Univ., 19-1137 (La.App. 1 Cir. 5/11/20), 311 So.3d 1083, 1085, writ denied, 20-00779 (La. 11/4/20), 303 So.3d 623. A court shall grant summary judgment if the pleadings, memorandum, and admissible supporting documents show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. See La. C.C.P. art. 966A(3) and (4); Jefferson, 311 So.3d at 1085. The summary judgment movant maintains the burden of proof. La. C.C.P. art. 966D(1). Nevertheless, if the movant will not bear the burden of proof at trial on the issue before the court on the motion, his burden is satisfied by pointing out an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and, if appropriate, the court shall render summary judgment against him. La. C.C.P. arts. 966D(1) and 967B. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Jefferson, 311 So.3d at 1085.
The premise of vicarious liability is codified in La. C.C. art. 2320, which provides that an employer is liable for the tortious acts of its employees "in the exercise of the functions in which they are employed." Accordingly, before the liability of an employer attaches, it must be demonstrated that an employer-employee relationship existed between the employer and the tortfeasor at the time of the tortious conduct. See Parmer v. Suse, 94-2200 (La.App. 1 Cir. 6/23/95), 657 So.2d 666, 668. The party seeking to establish an employer-employee relationship has the burden of proving such. Butler v. Boutan, 14-1058 (La.App. 1 Cir. 12/23/14), 168 So.3d 501, 506.
The C&B defendants contend plaintiffs will not be able to establish an employment relationship between C&B and Mr. Clement at the time of the June 4, 2018 accident. In support of their contention, the C&B defendants point to the affidavit of Michael Broussard, Mr. Clement's son-in-law and C&B's president. In his affidavit, Mr. Broussard attested that Mr. Clement was formerly C&B's president, he retired from that position in or around 2009, and Mr. Broussard became C&B president immediately upon Mr. Clement's retirement. Mr. Broussard also attested that C&B did not employ Mr. Clement in any capacity after his retirement, he held no status or position with C&B on the accident date, and he was not on a mission for C&B at that time. Further, Mr. Broussard attested that C&B did not own the ATV, but about five years before the accident, C&B had purchased it as a gift for Mr. Clement so he could visit family and friends who lived nearby. C&B considered the gift appropriate given that Mr. Clement had dedicated his life to building and running the family farm. According to Mr. Broussard, Mr. Clement used the ATV solely for his personal enjoyment and was merely "an 87-year-old retiree enjoying a ride on his ATV when the accident occurred."
The C&B defendants also point to a December 2020 deposition excerpt of Wanda Broussard, Mr. Clement's daughter, wherein she confirmed that, on the accident date, her father was retired, received no compensation from C&B, and was the owner of the ATV.
In opposition, the plaintiffs contend summary judgment is not warranted, because the C&B defendants' evidence does not concretely establish when or if Mr. Clement retired. The plaintiffs argue that Mr. Broussard attested that Mr. Clement retired eleven years before the accident, but Mrs. Broussard testified in her deposition that Mr. Clement had retired six years ago. The plaintiffs did not file the relevant pages of Mrs. Broussard's deposition to confirm her "six years ago" testimony, and we cannot accept arguments in brief as to what unfiled evidence purportedly proves. See In re Succession of Badeaux, 08-1085 (La.App. 1 Cir. 3/27/09), 12 So.3d 348, 352 (Arguments of counsel contained in appellate briefs and references to facts and issues that are not currently before the court are not considered record evidence). Thus, this unfiled evidence does not create a genuine issue of material fact. Further, even if the record contained conflicting statements as to Mr. Clement's retirement date, such is not material. A "material" fact is one that would matter on the trial on the merits. Kasem v. State Farm Fire & Cas. Co., 16-0217 (La.App. 1 Cir. 2/10/17), 212 So.3d 6, 13. Whether Mr. Clement retired eleven years before the accident or six years before Mrs. Broussard's deposition, either date plainly shows he was retired long before the June 4, 2018 accident herein. This argument has no merit.
The plaintiffs also claim Mr. Broussard's affidavit is "grossly deficient," because it contains a typed date that is struck-through and replaced with an uninitialed handwritten date, and because the notary did not include his notary number, expiration date, or licensure information. This argument is meritless for several reasons. First, the plaintiffs did not properly object to the admissibility of the affidavit as required by La. C.C.P. art. 966D(2). Second, the plaintiffs did not raise this issue in any manner before the trial court, and this court will not consider arguments made for the first time on appeal. Burniac v. Costner, 18-1709 (La.App. 1 Cir. 5/31/19), 277 So.3d 1204, 1210. Third, the definitive characteristics of an affidavit are: a declaration or statement of facts personally known to the affiant, reduced to writing and sworn to by the affiant before an officer who has authority to administer oaths, such as a notary public. Gorman v. Miller, 12-0412 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 841. The failure to identify the notary by name or number does not invalidate the affidavit. Id. Further, a court is not precluded from considering an affidavit that does not contain the notary identification or attorney bar roll number. See La. R.S. 35:12D(1); Millen v. State, DPSC, 07-0845 (La.App. 1 Cir. 12/21/07), 978 So.2d 957, 963; L.R.F. v. A.A., 13-797 (La.App. 5 Cir. 2/26/14), 133 So.3d 716, 719-20. Plaintiffs have provided no authority that would require disregard of Mr. Broussard's affidavit.
The plaintiffs next argue that the summary judgment burden never shifted to them, because the C&B defendants produced no business records to support the Broussards' "self-serving" statements that Mr. Clement was retired from C&B and produced no receipt or act of donation showing that Mr. Clement, as opposed to C&B, was the owner of the ATV. Plaintiffs misconstrue the burden-shifting framework of summary judgment law.
The C&B defendants, the summary judgment movants, do not bear the burden of proving an employer-employee relationship at trial; that is the plaintiffs' burden. Butler, 168 So.3d at 506. Rather, the C&B defendants' burden is to point outto the court that there is an absence of factual support for one or more elements essential to the adverse party's (i.e., the plaintiffs') claim. See La. C.C.P. art. 966C(2). With the Broussards' deposition testimony and Mr. Broussard's affidavit, the C&B defendants sustained their burden by "pointing out" that C&B and Mr. Clement had no employer-employee relationship at the time of the accident. Accord Parmer, 657 So.2d at 669 (finding corporation was not vicariously liable for former president's actions after he was no longer associated with the corporation). Thereafter, the plaintiffs were required to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial. See La. C.C.P. art. 966C(2). In response to this pointing out by the C&B defendants, plaintiffs offered nothing.
As earlier stated, when a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967A, the adverse party may not rest on the mere allegations or denials of his pleading, but he must produce proper evidence that sets forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967B. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. Because plaintiffs failed to offer any evidence to establish the requisite employment relationship rendering C&B vicariously liable for Mr. Clement's negligence, there is no genuine issue of material fact on this essential element of their claim against C&B. Without a claim against C&B, the plaintiffs' claim against Burlington, C&B's insurer, likewise fails. Based on our de novo review, we conclude the trial court erred in denying the motion for summary judgment.
CONCLUSION
For the above reasons, we convert the appeal to an application for supervisory writ, which we grant. We reverse the trial court's judgment and render judgment, granting the motion for summary judgment filed by Clements and Broussard Sugar Farm, LLC and Burlington Insurance Company, and dismissing with prejudice all claims filed against these defendants by Charles Verrett and Kashonda Verrett, individually and on behalf of Malaysia Verrett. We assess costs of the appeal to Charles Verrett and Kashonda Verrett.
APPEAL CONVERTED TO SUPERVISORY WRIT; WRIT GRANTED; JUDGMENT REVERSED AND RENDERED.