Ahmed v. Downman Dev., L.L.C.

234 So.3d 1111

Tarik AHMED

v.DOWNMAN DEVELOPMENT, L.L.C., ABC Corporation, XYZ Insurance Company, and Scottsdale Indemnity Company

NO. 2017–CA–0114

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 28, 2017

Stephen I. Dwyer, J. Kendall Rathburn, Kailey L. Leboeuf, DWYER CAMBRE & SUFFERN, 3000 West Esplanade Avenue, Suite 200, Metairie, LA 70002, COUNSEL FOR PLAINTIFFS/APPELLANTS

Alexander R. Saunders, PELLETERI & WIEDORN, L.L.C., 636 Carondelet Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )

JUDGE SANDRA CABRINA JENKINS

Plaintiffs, Tarik Ahmed and Miss US, Inc., appeal the trial court's September 23, 2016 judgment granting summary judgment in favor of defendants, Roofing Contractors, Inc. of Louisiana and United Fire & Indemnity Company, and dismissing plaintiffs' claims with prejudice. In rendering its judgment, the trial court found that Mr. Ahmed is not a proper party plaintiff and the amended petition, adding Miss US, Inc. as a plaintiff, did not relate back to the filing of the original petition. Based on our review of the record and applicable law, we find no error in the trial court's judgment and we affirm.

FACTS AND PROCEDURAL HISTORY

In May 2007, Tarik Ahmed entered into a lease agreement with Qaquish, L.L.C. for a commercial space located at 2001 St. Bernard Avenue, where he opened and operated St. Bernard Beauty Supply Store ("the beauty store"). That same month, Miss US, Inc. was incorporated as a Louisiana corporation with Mr. Ahmed as its sole shareholder and President. In or around May 2010, Mr. Ahmed "d/b/a Miss US, Inc.," signed an amendment to the lease agreement with Qaquish, L.L.C., extending and amending the terms of the original lease. Then, in September 2011, Qaquish, L.L.C. transferred ownership of the property at 2001 St. Bernard Avenue to Downman Development, L.L.C. ("Downman"), which became the successor in interest to the commercial lease for the beauty store.

On July 5, 2012, Mr. Ahmed, individually, instituted this suit for damages against Downman, Roofing Contractors, Inc. of Louisiana ("RCI") and United Fire & Indemnity Company.¹ According to the allegations in the petition, Downman contracted with RCI to repair and renovate the roof and ceiling above the beauty store. During the course of the repair work, at some time prior to November 15, 2011, RCI allegedly created large holes in the roof and ceiling above the beauty store but failed to seal the openings exposed by their work. Then, on or around November 15–16, 2011, heavy rain allegedly inundated the beauty store through the openings in the roof and ceiling and caused severe water damage to the stock and inventory therein. Thereafter, Mr. Ahmed, individually, filed this suit to recover damages sustained to the stock and inventory as a result of the alleged negligent acts of defendants.

In September 2015, after receiving discovery from Mr. Ahmed, RCI and United Fire & Indemnity Company (hereinafter "defendants") each filed a peremptory exception of no right of action seeking dismissal of all claims against them. Based on Mr. Ahmed's responses to discovery requests, defendants argued that the damaged stock and inventory was actually owned by Miss US, Inc., and Mr. Ahmed had no right to recover damages for property he did not personally own. In response, on October 15, 2015, Mr. Ahmed filed a motion for leave to file a third supplemental and amending petition adding Miss US, Inc. as a plaintiff;² he contemporaneously filed an opposition to the exception of no right of action, asserting that both he and Miss US, Inc. owned the damaged property and both are proper parties to the suit. After a hearing on the exception, the trial court rendered judgment granting Mr. Ahmed leave to amend the petition, denying defendants' exceptions of no right of action "without prejudice, as premature," and reserving to defendants the opportunity to re-urge the exception after additional discovery.

In July 2016, defendants each filed a motion for summary judgment seeking dismissal of all claims against them. Again, defendants argued that Mr. Ahmed was not the proper party to file suit to recover damages for property he did not own; in addition, defendants argued that the third supplemental and amending petition adding the proper party plaintiff, Miss US, Inc., could not relate back to the original petition filed by Mr. Ahmed and, thus, the claims asserted by the proper party were prescribed.

Plaintiffs filed an opposition to defendants' motions for summary judgment on August 31, 2016, and the trial court set a hearing on the motions for September 16, 2016. Following the hearing, the trial court rendered judgment on September 23, 2016, granting defendants' motions for summary judgment and dismissing plaintiffs' claims with prejudice. On October 24, 2016, the trial court issued written reasons for judgment.

Plaintiffs' timely appeal follows.

STANDARD OF REVIEW

Appellate courts review a trial court's ruling granting a motion for summary judgment de novo , using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. FMB Development, L.L.C. v. Hibernia Nat'l Bank , 16-1057, p. 4 (La. 7/12/17), 224 So.3d 431, 434. Pursuant to La. C.C.P. art. 966(A)(3), a court shall grant a motion for summary judgment if, after an opportunity for adequate discovery, the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

The burden of proof on a motion for summary judgment is governed by La. C.C.P. art. 966(D)(1), which provides as follows:

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.

The determination of whether material facts exist in the case depends upon the applicable substantive law. Jones v. Stewart , 16-0329, p. 8 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 389, citing Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751.

DISCUSSION

In this case, the trial court granted defendants' motions for summary judgment on the basis of prescription. In its reasons for judgment, the trial court made the following findings: Mr. Ahmed is not the proper party plaintiff because he has no right to recover for the alleged damage to property he did not own; the proper party plaintiff, Miss US, Inc., was not added within the one year prescriptive period; and the third supplemental and amended petition did not relate back to the filing of the original petition. Thus, the trial court found that the claims asserted by the proper party plaintiff, Miss US, Inc., were prescribed and defendants were entitled to summary judgment.

In the first assignment of error, plaintiffs argue that the trial court erred in granting summary judgment by finding that Mr. Ahmed is not a proper party plaintiff because he did not personally own the damaged stock and inventory at the beauty store. Plaintiffs assert that Mr. Ahmed has a real and actual interest in this suit and he properly instituted this litigation to recover for damage to inventory and stock that he purchased for the beauty store. Moreover, plaintiffs assert that the evidence presented in opposition to defendants' motions for summary judgment is sufficient to establish that both Mr. Ahmed, personally, and Miss US, Inc. owned the damaged inventory and that both are proper party plaintiffs.

The threshold issue in this appeal is whether there is a genuine issue of material fact that Mr. Ahmed is a proper party plaintiff in this case. In reviewing this issue, we begin with a discussion of the applicable law regarding proper party plaintiffs and right of action.

"Generally, an action can be brought only by a person having a real and actual interest which he asserts." Rebel Distributors Corp., Inc. v. LUBA Workers' Comp. , 13-0749, p. 9 (La. 10/15/13), 144 So.3d 825, 832 ; La. C.C.P. art. 681. "When the facts alleged in the petition provide a remedy under the law to someone, but the plaintiff who seeks the relief is not the person in whose favor the law extends the remedy, the proper objection is no right of action, or want of interest in the plaintiff to institute the suit." Howard v. Administrators of Tulane Educational Fund , 07-2224, p. 16 (La. 7/1/08), 986 So.2d 47, 59, citing Harry T. Lemmon & Frank L. Maraist, 1 Louisiana Civil Law Treatise, Civil Procedure § 6.7, 121 (West 1999). The objection is urged through a peremptory exception of no right of action raised by the defendant or the court on its own motion, in either the trial or appellate court. Howard , supra ; see La. C.C.P. art. 927. "The function of an exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." N. Clark, L.L.C. v. Chisesi , 16-0599, p. 5 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1016, quoting Hood v. Cotter , 08-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. In examining an exception of no right of action, the court assumes that the petition states a valid cause of action for some person but questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. J–W Power...