Opinion
2018 CA 1195
07-03-2019
JESSIE P. TOUCHET v. DIANE JONES
Barry J. Sallinger Lafayette, Louisiana and Kelly E. Balfour Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee Jessie P. Touchet Alexis A. St. Amant, II Baton Rouge, Louisiana Attorney for Defendant/Appellant Diane Jones
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. C633304, Sec. D The Honorable Janice Clark, Judge Presiding Barry J. Sallinger
Lafayette, Louisiana
and
Kelly E. Balfour
Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee
Jessie P. Touchet Alexis A. St. Amant, II
Baton Rouge, Louisiana Attorney for Defendant/Appellant
Diane Jones BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
The defendant, Diane Jones, appeals a summary judgment in favor of the plaintiff, Jessie P. Touchet. Finding genuine issues of material fact exist, we reverse the judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
On September 8, 2014, Touchet filed a "Petition for Monies Due" claiming Jones owed him $52,542.78. According to Touchet's petition, Jones was an employee of his former company, Baton Rouge Air Conditioning and Heating, Inc. (BRAC), and was terminated from her employment in October 2013. Touchet alleged that on May 21, 2009, he loaned Jones $20,000.00 that "was to be used by Jones to purchase inventory for a ... company [she] maintained interest in." Touchet further alleged that on June 30, 2011, he loaned Jones $32,452.78 that "was to be used by Jones to repay a bank lien owed by Jones." Touchet alleged that Jones failed to repay him for either loan.
On March 23, 2015, Jones filed a peremptory exception raising the objection of prescription, arguing that Touchet's petition was prescribed pursuant to La. C.C. art. 3494. Touchet opposed the exception, arguing that Jones acknowledged the debt she owed in writing, and agreed to repay him, which interrupted the three-year prescriptive period. In support of his argument, Touchet submitted his own affidavit and attached copies of two checks allegedly evidencing the loans. The loans were allegedly made in the form of checks. The check for $20,000.00 was made payable to Jones and signed by Jones. The check for $32,452.78 was made payable to "Baton Rouge Air Conditioning," signed by Jones, and the memo of the check stated "Bank of Zachary." On June 15, 2015, the trial court held a hearing on Jones' peremptory exception raising the objection of prescription. Thereafter, the trial court signed a judgment on July 9, 2015, dismissing the exception.
Louisiana Civil Code art. 3494 provides, in pertinent part:
The following actions are subject to a liberative prescription of three years:
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(3) An action on money lent[.]
We note that the transcript of the June 15, 2015 hearing is not in the record before us.
On June 16, 2015, Touchet filed his "First Supplemental and Amending Petition for Monies Due." In his amended petition, Touchet alleged that "the monies loaned to [Jones] were not due for repayment until her cessation of employment with [BRAC.]" Touchet further alleged that Jones "had no method of repayment of the obligation to him without utilizing her 401(k) benefits that she would receive from her cessation of employment[.]" On July 2, 2015, Touchet filed a "Second Supplemental and Amending Petition for Monies Due," alleging that on June 29, 2011, he loaned Jones $11,229.20. Touchet alleged that Jones failed to repay him for this third loan. Touchet further alleged that like the other two loans, repayment of this loan was not due until Jones could utilize her 401(k) benefits with BRAC. Touchet alleged that Jones acknowledged "the debts and obligation to repay [him] on numerous occasions[.]" According to Touchet, these acknowledgments "were made orally and [were] confirmed in written documents[.]" Touchet attached to his petition a check in the amount of $11,229.20, which he alleged was the loan document. The check was made payable to "Baton Rouge Air Conditioning," signed by Jones, and the memo of the check read "Burnam taxes." On July 27, 2015, Jones answered Touchet's petition as amended, denying a majority of the allegations.
On August 10, 2017, Touchet filed a motion for summary judgment, arguing that no genuine issues of material fact remained and that he was entitled to judgment as a matter of law. In support of his motion for summary judgment, Touchet submitted a supporting memorandum, arguing that the three loans to Jones remained unpaid. Attached to his memorandum were a statement of uncontested material facts, the affidavit of Richard C. "Dick" Flower, and his own affidavit. Touchet attached the three checks as exhibits to his affidavit. In opposition, Jones submitted a memorandum, affidavits, and a statement of contested material facts, arguing that there remained genuine issues of material fact that precluded summary judgment.
On March 26, 2018, the trial court held a hearing on Touchet's motion for summary judgment. On April 23, 2018, the trial court signed a judgment granting Touchet's motion for summary judgment, and awarded him $63,681.98, with judicial interest from the dates due until paid, and all costs of the proceedings. Jones suspensively appealed the April 23, 2018 judgment, contending that the trial court erred in granting Touchet's motion for summary judgment and dismissing her peremptory exception raising the objection of prescription.
On July 2, 2018, Touchet filed an ex parte motion to dismiss Jones' suspensive appeal, or in the alternative, a motion for a contradictory hearing with the trial court that sought to dismiss the appeal on the basis that the appeal bond was not filed with the petition for suspensive appeal as required by La. C.C.P. art. 2124. On July 9, 2018, the trial court signed an order granting Touchet's motion to dismiss. Thereafter, Jones filed a notice of intent to seek supervisory writs with this court to review the July 9, 2018 order dismissing her appeal. On August 16, 2018, this court granted Jones' supervisory writ, vacating the July 9, 2018 judgment, and remanding the matter to the trial court. See Touchet v. Jones, 2018-1119 (La. App. 1 Cir. 8/16/18), 2018 WL 3957125 *1. On September 28, 2018, Touchet filed a "Motion to Dismiss Suspensive Appeal and Request for Suspension of Briefing Delays" with this court. Touchet argued that this court should dismiss Jones' appeal because she failed to furnish security contemporaneously with filing her petition for a suspensive appeal.
We find that the issue with respect to whether the appeal bond should now be required to maintain the appeal as suspensive is moot because we have maintained Jones' appeal. In accordance with La. C.C.P. art. 2088(B), the trial court maintains jurisdiction to convert a suspensive appeal to a devolutive appeal when the appeal bond is not timely filed. In this case, the trial court found the appeal bond was not proper. Therefore, it should have converted the suspensive appeal to a devolutive appeal. For that reason, we will maintain the appeal. We further deny as moot Touchet's request to suspend briefing delays since he filed his appellate brief with this court on October 4, 2018.
APPLICABLE LAW
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. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0895 (La. App. 1 Cir. 12/21/17), 240 So.3d 932, 935, writ denied, 2018-0145 (La. 3/23/18), 238 So.3d 963. After an opportunity for adequate discovery, 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. La. C.C.P. art. 966(A)(3). Louisiana Code of Civil Procedure article (D)(1) places the burden of proof on the party filing a motion for summary judgment. The mover will bear the burden of proof on summary judgment unless the mover will not have the burden of proof at trial on the issue before the trial court. La. C.C.P. art. 966(D)(1); Smith v. Moreau, 2017-0003 (La. App. 1 Cir. 6/2/17), 222 So.3d 761, 765. The mover can meet his burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with his motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documents must prove the essential facts necessary to carry the mover's burden. This court has held that in deciding a summary judgment motion, it must first be determined whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Crockerham v. Louisiana Medical Mutual Insurance Company, 2017-1590 (La. App. 1 Cir. 6/21/18), 255 So.3d 604, 608, citing Dimattia v. Jackson Nat. Life Ins. Co., 2004-1936 (La. App. 1 Cir. 9/23/05), 923 So.2d 126, 129.
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Crosstex Energy Services, LP, 240 So.3d at 936. Appellate courts ask the same questions as the trial court: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. The applicable substantive law determines materiality; thus, whether a particular dispute is material can only be seen in light of the substantive law applicable to the case. Id. A genuine issue is one as to which reasonable persons could disagree. If reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 445, writ denied, 2018-0583 (La. 6/1/18), 243 So.3d 1062.
MOTION FOR SUMMARY JUDGMENT
As the party filing the motion for summary judgment, Touchet had the burden of proof. In this case, Touchet would have the burden of proof for both his motion for summary judgment and at trial. Therefore, this court must determine if Touchet met his burden of proving that there is no genuine issue as to material fact and that he is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).
To meet his burden, Touchet was required to establish the essential material facts necessary to show that there was no genuine issue of material fact. La. C.C.P. art. 966(D)(1). Touchet had to prove the relevant facts by submitting documentary evidence in accordance with La. C.C.P. art. 966(A)(4). Specifically, Touchet had to make a showing in accordance with La. C.C.P. art. 966(A)(3) that he loaned Jones $20,000.00 on May 21, 2009, $32,452.78 on June 30, 2011, $11,229.20 on June 29, 2011, and that Jones had not repaid him. Touchet had the burden of proving the terms of the alleged agreement between himself and Jones, the breach of the agreement by Jones, and the resulting damages. See Advocate Financial LLC v. Dart, 2014-0788 (La. App. 1 Cir. 3/6/15), 2015 WL 997215 *3.
In support of his motion for summary judgment, Touchet relied on his own affidavit and the three checks he attached to it. In his affidavit, Touchet stated in pertinent part:
3. On May 21, 2009, Touchet made a loan to Jones in the amount of $20,000.00.
4. The $20,000.00 loan was to be used by Jones to purchase inventory for a failing company Jones maintained an interest in namely.
5. Jones has failed to repay the $20,000.00 loan after requests for repayment were made.
6. At the request of Jones, on June 30, 2011, Touchet made a second loan to Jones in the amount of $32, 452.78.
7. The $32,452.78 loan was to be used by Jones to repay a bank lien which secured a debt owed by Jones.
8. Despite amicable demand, Jones has failed to repay the $32,452.78 loan.
9. On May 14, 2014, demand was made by Touchet on Jones for the back-due loans in the total amount of $52,542.78.
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13. Jones has failed to make timely payment on the loans. The balance is past due and interest continues to accrue on the amount outstanding.
[14]. Touchet is entitled to a return of the monies due in the amount of $63,771.98, together with interest owed on the principal amount.
[15]. Jones has acknowledged the above-referenced debts and promised to repay the obligations without avail.
In further support of his motion, Touchet submitted the affidavit of Flower, the owner of the company acting as the third-party administrator for BRAC's employees' 401(k) plans. In his affidavit, Flower stated that Jones told him that "she personally owed more than $50,000 to ... Touchet." Flower attached to his affidavit copies of several emails between himself and Jones, indicating that she "want[ed] to pay [Touchet] his money[.]" Touchet primarily relied on Flower's affidavit and the copies of the several emails between Flower and Jones to establish Jones' acknowledgment of the debt and his right to collect the money from her. The record reveals that there was no objection made to Flower's affidavit and the copies of the emails submitted by the plaintiff. Therefore, the affidavit and emails must be considered by the court to determine whether there is a genuine issue of material fact. See La. C.C.P. art. 966(D)(2).
While the court may consider Flower's affidavit since there was no objection thereto, we make no determination as to whether the affidavit is proper or if it meets the standard of La. C.C.P. art. 967(A). See Mariakis v. North Oaks Health System, 2018-0165 (La. App. 1 Cir. 9/21/18), 258 So.3d 88, 96; Labarre v. Occidental Chemical Co. and Texas Brine Co., LLC, 2017-1370 (La. App. 1 Cir. 6/4/18), 251 So.3d 1092, 1104; Unifund CCR Partners v. Perkins, 2012-1851 (La. App. 1 Cir. 9/25/13), 134 So.3d 626, 631.
Louisiana Code of Civil Procedure article 966(D)(2) provides:
The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.
After a de novo review of the record, we find that the trial court improperly granted the motion for summary judgment in favor of Touchet because he failed to meet his burden of producing sufficient supporting documentary evidence as required by La. C.C.P. art. 966(A)(3) & (4) to show that there was no genuine issue of material fact. The evidence introduced by Touchet in conjunction with his motion for summary judgment raises several genuine issues of material fact regarding Jones' alleged obligation to repay him for the three loans, which were allegedly made in the form of checks. While in his memorandum and supporting affidavits, Touchet made several factual allegations regarding Jones' obligation to repay him, he failed to file any supporting documentary evidence with his motion for summary judgment to establish: (1) the specific terms of the parties' agreement for repayment of the three loans; (2) that Jones personally received the money from the three loans; and (3) that Jones acknowledged her alleged indebtedness to Touchet for the loans and the amount owed, if any. All of these facts are material and necessary to determine if Jones had an obligation to repay Touchet for the three alleged loans and the time period for repayment. With all of these material facts still in dispute, summary judgment is inappropriate in this case. Therefore, we find that the trial court's April 23, 2018 judgment must be reversed.
We note that because the documentary evidence offered by Touchet does not resolve all material fact issues, we do not have to consider the evidence presented by Jones. See Crockerham, 255 So.3d at 608. We further note that Todd Jones' affidavit, offered by Jones, raises genuine issues of material fact regarding Jones' obligation to repay Touchet, as it conflicts with the version of facts given by Touchet in his affidavit. Resolution of these conflicting versions of the facts and the terms, nature, and scope of any agreement would require the weighing of conflicting evidence and determination of credibility, which are inappropriate in summary judgment proceedings. See Adolph v. Lighthouse Property Insurance Corporation, 2016-1275 (La. App. 1 Cir. 9/8/17), 227 So.3d 316, 321; Pumphrev v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 91.
Lastly, we address Jones' assignment of error arguing that the trial court erred in denying her peremptory exception raising the objection of prescription. As the appellant, Jones is responsible for the completeness of the record for appellate review, and the inadequacy of the record is imputable to her. Moore v. Murphy Oil USA, Inc., 2015-0096 (La. App. 1 Cir. 12/23/15), 186 So.3d 135, 143, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066. Since the record on appeal does not contain the transcript of the June 15, 2015 hearing on Jones' peremptory exception raising the objection of prescription, there is nothing for this court to review, and the trial court's ruling is presumed correct. Succession of Walker, 288 So.2d 328, 329 (La. 1974); Oliver v. Cal Dive Intern, Inc., 2002-1122 (La. App. 1 Cir. 4/2/03), 844 So.2d 942, 947, writs denied, 2003-1230 (La. 9/19/03), 853 So.2d 638 and 2003-1796 (La. 9/19/03), 853 So.2d 648. Accordingly, we affirm the trial court's denial of Jones' peremptory exception raising the objection of prescription, as it relates to Touchet's original petition.
We note that the trial court's ruling does not pertain to Touchet's first and second amended petitions, because they were filed after the trial court's hearing on Jones' peremptory exception raising the objection of prescription. On remand, Jones can reurge her claim of prescription as to the amended petitions, if she thinks such is merited.
CONCLUSION
For the reasons stated above, we find that the trial court improperly granted the motion for summary judgment in favor of the plaintiff, Jessie P. Touchet. Therefore, we reverse the April 23, 2018 judgment, and remand to the trial court for further proceedings. All costs are assessed to the plaintiff, Jessie P. Touchet.
MOTION TO DISMISS SUSPENSIVE APPEAL DENIED; REVERSED AND REMANDED.