Christophe v. Washington

272 So.3d 106

Jennifer Marvel CHRISTOPHE and Amber Nicole Hicks

v.Brienne Elisse WASHINGTON, Allstate Property and Casualty Insurance Company, Kiawana Miller, ABC Insurance Company, and the City of Maringouin

NUMBER 2017 CA 0512

NUMBER 2018 CW 0691

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: February 14, 2019

Chad A. Aguillard, New Roads, LA, Counsel for Plaintiff/Appellant, Jennifer Marvel Christophe

R. Layne Royer, Heather M. Royer, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Amber Nicole Hicks

Candice L. Rodgers, Baton Rouge, LA, J. Scott Thomas, Baton Rouge, LA, Counsel for Defendant/Appellee, The Town of Maringouin¹

BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

GUIDRY, J.

Plaintiff/Appellant, Amber Nicole Hicks, appeals from an August 11, 2016 trial court judgment granting summary judgment in favor of defendant, Town of Maringouin, and dismissing her claims against it with prejudice. Additionally, the Town of Maringouin filed an application for supervisory review, seeking review of a separate trial court judgment signed on April 25, 2018, denying its motion to strike and exception raising the objection of prescription. For the reasons that follow, we affirm the August 11, 2016 judgment and deny the Town's application for supervisory review.

FACTS AND PROCEDURAL HISTORY

On April 13, 2013, Jennifer Christophe was operating a 2005 Hyundai westbound on Landry Drive approaching its intersection with Railroad Avenue in the Town of Maringouin (the Town). Hicks was a passenger in Christophe's vehicle. At the same time, Brienne Washington was operating a 1997 Toyota owned by Morris Miller, the father of Washington's passenger, Kiawana Miller, heading southbound on Railroad Avenue. Washington executed a left turn, entered the intersection of Landry Drive and Railroad Avenue, and collided with the vehicle operated by Christophe.

Thereafter, Christophe and Hicks filed a petition for damages, seeking damages for injuries sustained as a result of the accident and naming as defendants: Washington and her insurer, Allstate Property and Casualty Insurance Company (Allstate); Kiawana Miller and her insurer, ABC Insurance Company (ABC); and the Town.² As to the Town, plaintiffs asserted that it is liable for plaintiffs' damages because a stop sign that was supposed to be at the end of Railroad Avenue was not where it should have been and therefore, the Town is liable for failure to maintain the traffic control system in a reasonably prudent manner.

Plaintiffs filed a supplemental and amending petition on April 30, 2015, naming James D. "Buddy" Caldwell, Louisiana Attorney General; Sherri H. Lebas, Secretary, Louisiana Department of Transportation and Development; and Bud Thompson, Director, Louisiana Office of Risk Management, as additional defendants. Plaintiffs asserted that, alternatively, the State of Louisiana, through the Department of Transportation and Development, is the legal entity responsible for the maintenance and control of traffic signals on Louisiana roadways and is liable for its failure to maintain the traffic control system in a reasonably prudent manner. Plaintiffs also filed a second supplemental and amending petition naming Christophe's uninsured/underinsured motorist insurer, Republic Fire and Casualty Insurance, as a defendant.

On April 1, 2016, the Town filed a motion for summary judgment, asserting that plaintiffs are unable to establish that the Town had custody and control of the roadway and stop sign at issue and alternatively, that plaintiffs cannot establish that the Town had actual or constructive notice that the stop sign was missing. The Town attached a copy of the deposition of Lee Butler, utility superintendent for the Town, to its motion. Thereafter, plaintiffs filed an opposition, attaching an affidavit from Hicks and several pictures of the road, intersection, and street sign.

The hearing on the Town's motion was set for June 2, 2016. However, the trial court continued the matter to July 21, 2016. Thereafter, the Town filed a supplemental and amended memorandum in support of its motion for summary judgment, asserting that the affidavit signed by Hicks and filed in response to its motion for summary judgment conflicts with her prior deposition testimony, that she offers no explanation or justification for any inconsistency, and as such, it does not create a genuine issue of material fact where one did not previously exist. The Town also requested that the photographs attached to plaintiffs' opposition be stricken as not complying with La. C.C.P. art. 966(A)(4). The Town attached a copy of Hicks's deposition to its supplemental memorandum.

The plaintiffs filed a supplemental opposition on July 12, 2016, asserting that Hicks's affidavit was not a material change from her previous deposition testimony and arguing that the photographs were properly before the court on the motion for summary judgment, because they were attachments to Christophe's deposition. Plaintiffs attached a copy of Christophe's deposition to their supplemental opposition in addition to the deposition testimony of Hicks and an affidavit from Anitra Anderson.

The Town thereafter filed a reply to plaintiffs' supplemental opposition. The Town moved to strike plaintiffs' response as an expansion of the pleadings, due to its non-conformity with La. C.C.P. art. 966, and as being in violation of the trial court's instructions on June 2, 2016. The Town claimed that the June 2, 2016 hearing was continued to allow the parties additional time to brief the issue of subsequently filed affidavits, but that plaintiffs had taken the opportunity to expand the pleadings, submit new evidence that had not been disclosed during discovery, and to submit additional evidence not compliant with La. C.C.P. art. 966.

Following a hearing on July 21, 2016, the trial court signed a judgment granting the Town's motion to strike the photographs attached to plaintiffs' opposition as not in conformity with La. C.C.P. art. 966 ; granted the Town's motion to strike the affidavit of Hicks as it was not filed timely and falls within the subsequently filed affidavit rule;³ and granted the Town's motion for summary judgment, dismissing all of plaintiffs' claims against it with prejudice. Hicks filed a motion for devolutive appeal from the trial court's judgment.

After Hicks filed her motion for appeal, she filed in this court a Motion to Continue Date to File Appellant's Brief and Supplement the Record, individually and on behalf of her minor child, Dustin O'Brien Dixon, Jr. After this court granted Hicks's motion, she thereafter filed a Second and Third Motion to Continue Date to File Appellant's Brief and Supplement the Record, also individually and on behalf of her minor child. Hicks also filed a motion to stay the appeal and correspondence, all individually and on behalf of Dixon.

Thereafter, Hicks filed in the trial court, individually and on behalf of Dixon, a petition to annul judgment and a Second Ex-Parte Motion to Supplement the Appellate Record. The Town responded by filing a motion to strike the petition and any reference to Dixon in these proceedings and also filed an exception raising the objection of prescription, claiming Hicks's claims on behalf of Dixon, raised for the first time in Hicks's Motion to Continue Dates to File Appellant's Brief, are prescribed. Thereafter, the trial court signed a judgment on April 25, 2018, denying Hicks's motion to supplement the appellate record; denied the Town's motion to strike Hicks's Second Ex-Parte Motion to Supplement the Appellate Record, finding that the appellate court should decide this issue; and denied the Town's exception raising the objection of prescription, finding that it lacked jurisdiction to consider the exception because the matter was on appeal.

On May 23, 2018, the Town filed a motion to strike in this court, requesting that this court strike any reference to Dixon in the prior motions filed by Hicks in this court and also filed an exception raising the objection of prescription, seeking to dismiss all claims for damages of Hicks on behalf of her minor child, Dixon. Additionally, the Town filed an application for supervisory writs seeking review of the trial court's April 25, 2018 judgment denying its motion to strike and exception raising the objection of prescription. The writ application was referred to the panel hearing the appeal, and we now consider the merits of the appeal, as well as the Town's writ application, motion to strike, and exception raising the objection of prescription.

DISCUSSION

Motion for Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. M/V Resources LLC v. Louisiana Hardwood Products LLC, 16-0758, p. 8 (La. App. 1st Cir. 7/26/17), 225 So.3d 1104, 1109, writ denied, 17-1748 (La. 12/5/17), 231 So.3d 624. A motion for summary judgment is properly 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. C.C.P. art. 966(A)(3). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. M/V Resources LLC, 16-0758 at p. 9, 225 So.3d at 1109. A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F).

On a motion for summary judgment, the burden of proof is on the mover. Nevertheless, if the mover will not bear the...