Opinion
2021 CA 0293
03-10-2022
DEDRICK HARRELL, MELISSA VARNADO INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD BREONA HARRELL v. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
Katia Bowman Thomas Gildersleeve Harry J. Skip Philips, Jr. Leah C. Cook Baton Rouge, LA Counsel for Defendant/Appellant Dixie Electric Membership Company (DEMCO) Charles Foret Jason R. Garrot Lafayette, LA Counsel for Defendants/Appellees Chain Electric Company and Lafayette, LA Zurich American Insurance Company
On appeal from the Twenty-First Judicial District Court In and for the Parish of St. Helena State of Louisiana Docket Number 23244-D, Honorable Brian K. Abels, Judge Presiding
Katia Bowman Thomas Gildersleeve Harry J." Skip" Philips, Jr. Leah C. Cook Baton Rouge, LA Counsel for Defendant/Appellant Dixie Electric Membership Company (DEMCO)
Charles Foret Jason R. Garrot Lafayette, LA Counsel for Defendants/Appellees Chain Electric Company and Lafayette, LA Zurich American Insurance Company
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
GUIDRY, J.
Defendant, Dixie Electric Membership Corporation (DEMCO), appeals from a judgment granting a motion for summary judgment filed by co-defendants, Chain Electric Company and its insurer, Zurich American Insurance Company (collectively, "Chain"). For the reasons that follow, we reverse in part and remand.
FACTS AND PROCEDURAL HISTORY
This case arises out of an accident in August of 2016 involving Dedric Harrell and a downed tree on Louisiana Highway 43 in St. Helena Parish. The downed tree, which damaged poles and power lines in DEMCO's right-of-way, caused an electrical outage. After the power was restored by DEMCO and Chain,Mr. Harrell, who was traveling north on Highway 43 in his vehicle, hit the downed tree. Mr. Harrell later passed away as a result of the accident.
It appears that Mr. Harrell's first name is misspelled on the record cover.
DEMCO engaged Chain as its contractor to restore power.
Plaintiffs filed suit on November 7, 2016, against the State of Louisiana through the Department of Transportation and Development (DOTD), and subsequently named DEMCO and Chain as defendants, in October of 2019. As to DEMCO and Chain, the plaintiffs alleged that they were negligent in causing Mr. Harrell's injuries and damages by failing to erect signs and markings on the south side of the tree, and otherwise failing to warn motorists of the fallen tree.
Mr. Harrell and Melissa Varnado, individually and on behalf of his then-minor child Breona Harrell, filed suit against the DOTD. After Mr. Harrell died intestate, his two adult children, Breona Harrell and Britney Harrell, were substituted as plaintiffs on his behalf. They later amended their petition to name DEMCO and Chain as defendants.
On August 25, 2020, Chain filed a motion for summary judgment seeking dismissal of all claims made by the plaintiffs. Chain argued that there were no genuine issues of material fact, and that as a matter of law, Chain had no liability to the plaintiffs. The hearing for Chain's motion was originally set on October 23, 2020. However, the hearing on the motion was held on September 28, 2020, at which time DEMCO objected to the lack of timely notice of the hearing. The trial court, nonetheless, held the summary judgment hearing and ultimately granted Chain's motion, signing a judgment to that effect on October 13, 2020. The plaintiffs did not appeal the judgment. DEMCO, however, appealed, assigning the following as error: "[t]he trial court erred by granting Chain's [m]otion for [s]ummary [j]udgment when DEMCO did not receive notice at least thirty days prior to the hearing, as required by Louisiana Code of Civil Procedure article 966."
DEMCO (as well as defendant DOTD) argued that proper notice was not received at least thirty days before the hearing in compliance with La. C.C.P. art. 966.
MOTION TO SUPPLEMENT THE RECORD
On April 30, 2021, this court, ex proprio motu, issued a rule to show cause order, noting that the ruling from the motion to recall orders for devolutive appeal was omitted from the record and that the motions and orders for appeal did not show a date-stamp. The parties were directed to show cause as to whether the appeal should or should not be dismissed.
On June 21, 2021, by interim order of this court, the appeal was maintained.
The parties, appellant DEMCO and appellee Chain, filed a joint stipulation to supplement the record on appeal to include a legible file-stamped copy of DOTD's motion and order for appeal, a legible file-stamped copy of DEMCO's motion and order for appeal, and a file-stamped copy of the judgment on Chain's motion to recall orders for devolutive appeal. The joint stipulation to supplement the record on appeal was referred to this panel to which the merits of the appeal are assigned.
We note that the appeal of DOTD was dismissed by order of this court dated September 23, 2021.
As an appellate court, we have no jurisdiction to review evidence that is not in the record on appeal, and we cannot receive new evidence. Niemann v. Crosby Development Company, LLC, 11-1337, p. 7 (La.App. 1st Cir. 5/3/12), 92 So.3d 1039, 1044. However, La. C.C.P. art. 2132 authorizes the correction of a record on appeal that is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record. See Unifund CCR Partners v. Perkins, 12-1851, p. 3 (La.App. 1st Cir. 9/25/13), 134 So.3d 626, 629.
A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court. La. C.C.P. art. 2132.
In the present matter, the ruling on the motion to recall orders for devolutive appeal is a material part of the trial record and should be made a part of the record on appeal, as it directly relates to the underlying judgment that is being appealed.In addition, the legible file-stamped copies of the motions and orders for appeal correct the record irregularities and resolve the issues raised in this court's show cause order. Accordingly, we hereby grant the joint motion, by stipulation of the parties, to supplement the record on appeal.
The motion to recall orders for devolutive appeal, filed by Chain, was denied by the trial court.
DISCUSSION
As set forth in the assignment of error, the appellant avers that the trial court erred in granting summary judgment where the notice requirements and time limitations of La. C.C.P. art. 966 were not complied with. 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. Juge v. Springfield Wellness. LLC, 18-0736, p. 5 (La.App. 1st Cir. 2/28/19), 274 So.3d 1, 4, writ denied, 19-0513 (La. 5/28/19), 273 So.3d 309. Moreover, "[t]o uphold a summary judgment on appeal, the record must reflect the mover secured the judgment in accordance with the procedure mandated by Louisiana Code of Civil Procedure article 966." Acadian Properties Northshore, LLC v. Fitzmorris, 17-0424, p. 9 (La.App. 1st Cir. 11/1/17), 234 So.3d 927, 934.
Article 966 provides in pertinent part:
C. (1) Unless otherwise agreed to by all of the parties and the court:
(a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date.
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing. [Emphasis Added.]
Article 966 requires that, unless the parties and court agree otherwise: (1) a motion for summary judgment shall be set for hearing at least thirty days after filing; (2) notice of the date of the hearing shall be served in accordance with La. C.C.P. arts. 1313(C) (by certified mail or commercial courier) or 1314 (by the sheriff) at least thirty days before the hearing; and (3) the hearing on the motion shall be set at least thirty days prior to the trial date. Dehart v. Jones, 18-764, p. 4 (La.App. 3d Cir. 3/27/19), 269 So.3d 801, 804-805. The thirty-day notice is mandatory and is designed to give fair notice of the evidentiary and legal bases for the motion. Acadian Properties Northshore, LLC, 17-0424 at p. 10, 234 So.3d at 934. Moreover, procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental. Lassere v. State, Department of Health & Hospitals, Office of Public Health, 00-0306, p. 4 (La.App. 1st Cir. 3/28/01), 808 So.2d 513, 516; Macaluso v. Macaluso, 99-0935, p. 6 (La.App. 1st Cir. 5/12/00), 762 So.2d 180, 183. With regard to the notice requirement of La. C.C.P. art. 966, courts have consistently found that the mover must show that he has secured the judgment in accordance with the procedural law in order to have the summary judgment upheld on appeal. See Macaluso, 99-0935 at p. 5, 762 So.2d at 183.
In the present case, there seems to be no dispute that notice was not served in accordance with the thirty-day prerequisite set forth in La. C.C.P. art. 966(C)(1)(b). However, Chain argues that there was an agreement between the parties and/or that DEMCO agreed to waive the thirty-day notice requirement. As pointed out by Chain, DEMCO did not file an opposition to Chain's motion for summary judgment or file any written objection to the hearing date. Rather, for the first time, at the September 28, 2020 hearing, DEMCO advised the trial court that it was not waiving the notice requirements of Article 966.
A review of the transcript of the hearing demonstrates that when the hearing began, DOTD informed the trial court that "DOTD didn't actually receive notice until [DOTD was] told by plaintiffs' counsel on the 10th of September, and [was] formally served on the 16th of September by the clerk's office." The trial court responded as follows:
Well, it's thirty days. You have to set it for hearing. It can't be any less than thirty days after the filing, and it's got to be thirty days before trial. So that is my tight rope that I'm walking here trying to get things set for you guys. That's why we're here on a Monday afternoon in a special setting to hear these motions. So your objection is noted, but we're going to move forward today on the motion.
Counsel for DEMCO then responded to the trial court as follows: "Your Honor, just for the record, we don't waive the thirty day notice required. I understand your ruling, but I wanted to make that clear on the record."
Service of a motion for summary judgment can be waived. McClure v. Target Corporation, 19-758, p. 6 (La.App. 3d Cir. 6/10/20), 298 So.3d 889, 892. That waiver need not follow the formal requirements of La. C.C.P. art. 1201, which governs citation. McClure, 19-758 at p. 6, 298 So.3d at 892. However, in this case, there is no evidence in the record showing that DEMCO agreed to a waiver of the thirty-day notice requirement. In addition, there is no evidence in the record showing that DEMCO was served with notice of the September 28, 2020 hearing date.
As we expressed in Acadian Properties Northshore. LLC, 17-0424 at p. 10, 234 So.3d at 934, the trial court cannot unilaterally dispense with the pre-hearing notice required by Article 966(C). Absent a waiver, if the required notice is not provided, the trial court is procedurally barred from acting on the motion for summary judgment. See La. C.C.P. art. 966(C); Acadian Properties Northshore, LLC, 17-0424 at p. 10, 234 So.3d at 934. Accordingly, in the absence of a waiver by DEMCO, the summary judgment herein was procedurally flawed and rendered in clear violation of La. C.C.P. art. 966.
CONCLUSION
For the above and foregoing reasons, the trial court's judgment of October 13, 2020, granting the motion for summary judgment in favor of Chain Electric Company and Zurich American Insurance Company is not final as to Chain Electric Company, Zurich American Insurance Company, and Dixie Electric Membership Corporation. That part of the judgment is reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to the defendants/appellees, Chain Electric Company and Zurich American Insurance Company.
Because the plaintiffs did not appeal that part of the trial court's judgment granting the motion for summary judgment in favor of Chain and Zurich, dismissing with prejudice the claims against those defendants, that part of the judgment is final as between those plaintiffs and those defendants, and this court need not review that part of the judgment. See Grimes v. Louisiana Medical Mutual Insurance Company, 10-0039, p. 3 (La. 5/28/10), 36 So.3d 215, 217 (per curiam).
MOTION TO SUPPLEMENT GRANTED, REVERSED IN PART, REMANDED.