Opinion
NO. 19-C-474
10-22-2019
HEALTHLOGIC PARTNERS, LLC v. KIMBERLY OWEN
Susan Buchholz First Deputy Clerk IN RE KIMBERLY OWEN APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE STEPHEN D. ENRIGHT, JR., DIVISION "N", NUMBER 770-536 Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg
WRIT GRANTED IN PART; DENIED IN PART; STAY DENIED
In this writ application, relator/defendant, Kimberly Owen, asserts that the trial court erred by: 1) refusing to consider her dilatory exception of prematurity, filed in opposition to the motion for summary judgment, on the basis that it was untimely; 2) refusing to consider, and therefore denying, her exceptions to the original and supplemental and amended petitions, based on untimeliness; and 3) granting the motion for summary judgment on the issue of liability filed by respondent/plaintiff, Healthlogic Partners, L.L.C. ("HLP"). For the following reasons, we deny the writ in part, grant the writ in part, and remand for further proceedings.
After review, we find no error in the trial court's refusal to consider relator's "dilatory exception of prematurity" filed in opposition to the motion for summary judgment, as it was untimely filed the day before the hearing on the motion for summary judgment. See La. C.C.P. art. 966(B)(2). Thus, we deny the writ on this issue.
With regard to the trial court's refusal to consider relator's exceptions to the original and supplemental and amended petitions, we find merit in relator's argument. Relator filed a dilatory exception of vagueness and ambiguity to the supplemental and amended petition and peremptory exceptions of no cause of action as to the original petition and the supplemental and amended petition.
La. C.C.P. art. 928(B) provides that a peremptory exception may be pleaded at any stage of the proceedings in the trial court prior to submission of the case for a decision. Thus, the exception of no cause of action was not untimely and should be considered. With regard to the dilatory exception of vagueness and ambiguity, La. C.C.P. art. 928(A) provides that such an exception shall be pleaded prior to or in the answer. Relator's exception of vagueness and ambiguity as to the supplemental and amended petition was not untimely, because no answer to this petition had been filed prior to the filing of that exception. Thus, we grant the writ in part and remand for the trial court to consider relator's exceptions.
With regard to the granting of the motion for summary judgment on the issue of liability, we also find relator's argument has merit.
La. C.C.P. art. 966(A)(3) provides that "a motion for summary judgment shall be 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." The burden of proof rests with the mover, who, in this case, also bears the burden of proof at trial. See La. C.C.P. art. 966(D)(1).
Summary judgment must be denied if the supporting documents presented by the mover are not sufficient to resolve all material fact issues. Herman v. Rome, 95-666 (La. App. 5 Cir. 1/17/96), 668 So.2d 1202, 1204. Only if the supporting documents of the mover are sufficient does the burden shift to the opposing party to present evidence that material facts are still at issue. Id. All doubt should be resolved in the non-moving party's favor. McGillion v. Englade, 18-621 (La. App. 5 Cir. 5/29/19), 274 So.3d 822, 828, writ denied, 19-1086 (La. 10/8/19), ___ So.3d ___.
In its motion for summary judgment on the issue of liability, HLP asserted there are no genuine issues of material fact as to its claims of breach of contract, fraud, and Unfair Trade Practices, and that it is entitled to judgment as a matter of law. In support of its motion for summary judgment, HLP submitted several exhibits, including the Letter of Intent, Responses to Requests for Admissions and Interrogatories, the original petition, and defendant's answer to the original petition. It also submitted the affidavit of Louis "Val" Generes, in which he states that he is a managing member of HLP and he sets forth a timeline of his version of events. Mr. Generes states that Ms. Owen "never made any good faith efforts" to negotiate or execute agreements in accordance with the requirements of the Letter of Intent.
Ms. Owen submitted an opposition to the motion for summary judgment but it was not considered since it was not timely filed. However, even without considering Ms. Owen's opposition, HLP had the burden to prove there are no genuine issues of material fact and that it is entitled to judgment as a matter of law, after de novo review, we find that HLP did not meet its burden. We find that genuine issues of material fact remain, which preclude summary judgment on the issue of liability. Neither Mr. Generes' affidavit nor the other exhibits submitted were sufficient to meet HLP's burden of showing there are no genuine issues of material fact as to whether Ms. Owen is liable for breach of contract, fraud, or Unfair Trade Practices.
Accordingly, we deny the writ application as to relator's claim that her exception or opposition to the motion for summary judgment should have been considered, because we agree that it was untimely. We grant the writ as to relator's exceptions of no cause of action and vagueness and ambiguity, and we remand for the trial court to consider these exceptions. Finally, finding genuine issues of material fact, we reverse and vacate the summary judgment on liability and remand for further proceedings. We further deny relator's request for a stay at this time.
Gretna, Louisiana, this 22nd day of October, 2019.
HJL
JGG
RAC