Opinion
2022 CA 1255
06-02-2023
STEVEN G. KINSLEY, ET UX v. BATON ROUGE GENERAL MEDICAL CENTER, ET AL
Timothy J. Martinez Attorney for Plaintiffs -Appellants, Baton Rouge, Louisiana Steven G. Kinsley and Robie Kinsley Michael M. Remson Attorneys for Defendant -Appellee, Craig J. Sabottke Baton Rouge General Medical Center Courtenay S. Herndon Baton Rouge, Louisiana Lawrence R. Plunkett, Jr. Attorneys for Defendant -Appellee, R. Andrew Davis Hospital Housekeeping Systems, L.L.C. Mandeville, Louisiana
On Appeal from the 19th Judicial District Court Parish of East Baton Rouge, State of Louisiana Trial Court No. 642,556 The Honorable Richard "Chip" Moore, Judge Presiding
Timothy J. Martinez Attorney for Plaintiffs -Appellants, Baton Rouge, Louisiana Steven G. Kinsley and Robie Kinsley
Michael M. Remson Attorneys for Defendant -Appellee, Craig J. Sabottke Baton Rouge General Medical Center Courtenay S. Herndon Baton Rouge, Louisiana
Lawrence R. Plunkett, Jr. Attorneys for Defendant -Appellee, R. Andrew Davis Hospital Housekeeping Systems, L.L.C. Mandeville, Louisiana
BEFORE: GUIDRY, C.J, WOLFE, AND MILLER, JJ.
WOLFE, J.
In this slip and fall case, the trial court did not consider the plaintiffs' late-filed opposition to the defendants' motions for summary judgment, denied the plaintiffs' the privilege of oral argument, granted summary judgment in favor of both defendants, and dismissed the plaintiffs' claims with prejudice. For the following reasons, we affirm.
BACKGROUND
Plaintiff, Steven G. Kinsley, alleges that he slipped, fell, and sustained injuries on October 1, 2014, outside of the Chapel at the Baton Rouge General Medical Center - Mid-City Campus ("BRGMC"). Mr. Kinsley filed suit against BRGMC and Hospital Housekeeping Systems, L.L.C. ("HHS"), for damages as a result of his injuries, along with his wife, Robie Kinsley, who alleged she had sustained loss of consortium, society, companionship, and services. Mr. Kinsley described the incident in his petition as slipping and falling after stepping "on the floor adjacent to the carpeted area, on a slippery foreign substance, believed to be shampoo used to clean the carpet." Mr. Kinsley further alleged, in an amended petition, that HHS and its employees should have posted warning signs about the "potentially dangerous situation," which could have prevented his injuries.
Seven years into the litigation, both defendants filed motions for summary judgment, asserting that the Kinsleys could not support their claims of negligence against BRGMC and HHS, because there is no supporting evidence to show that a foreign substance or an unreasonably dangerous condition was present on the floor at the time of the incident. In support of their motions for summary judgment, both defendants relied on the deposition testimony of Mr. Kinsley that revealed the slip and fall was unwitnessed and that he did not actually observe anything on the floor. Mr. Kinsley acknowledged that when he arrived at the hospital early on the day of the incident, the carpet was not wet. A few hours later when leaving the Chapel area, Mr. Kinsley stated that he slipped and fell, that the carpet felt wet, and he could smell a cleaning substance.
BRGMC and HHS both relied on the deposition testimony of Raoul Manuel, an employee of HHS, who supervised BRGMC floor technicians, employees of the hospital who were responsible for cleaning the carpet. Mr. Manuel stated that he assigned a floor technician to shampoo the carpet in the hall outside of the Chapel on Sunday night, September 28, 2014, and he personally inspected the completed project on Monday, September 29, 2014. Mr. Manuel further testified that by the time Mr. Kinsley walked through the area around mid-day on Wednesday, October 1, 2014, the carpet would have long since dried. Mr. Manuel stated that the cleaning chemical's scent will linger, but the carpet will dry within five to ten minutes upon completion of the job.
The hearing on both motions for summary judgment was originally set for December 6,2021, but was continued by order of the trial court to February 7, 2022. Consequently, the Kinsleys were granted an extension of time to oppose the motions. The Kinsleys filed an opposition to both motions for summary judgment on January 28, 2022, which was five days past the due date of January 23, 2022. BRGMC and HHS both filed objections to the Kinsleys' untimely opposition, maintaining that the opposition and supporting documents should not be considered by the trial court pursuant to the mandatory deadlines set forth in La. Code Civ. P. art. 966(B)(2) and, further, that counsel for the Kinsleys forfeited the privilege of oral argument at the hearing on the motions for summary judgment, pursuant to Louisiana District Court Rule 9.9(e). BRGMC and HHS thus argued that the Kinsleys had absolutely no evidence that a foreign substance was on the floor that caused Mr. Kinsley to slip and fall other than Mr. Kinsley's own self-serving testimony that is not corroborated by any witness or evidence.
The Kinsleys raised no objection to any of the exhibits attached to BRGMC s and HHS's motions for summary judgment. Therefore, in accordance with La. Code Civ. P. art. 966(D)(2), the court "shall consider any documents to which no objection is made" to determine if any evidentiary value should be given to the documents. Pottinger v. Price, 2019-0183 (La.App. 1st Cir. 10/23/19), 289 So.3d 1047, 1052-1053.
Louisiana Code of Civil Procedure article 966(B)(2) specifically states that "[a]ny opposition to the motion [for summary judgment] and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion." With the hearing on the motions set for February 7,2022, the opposition and supporting documents were due, at the very latest, by January 24, 2022.
Louisiana District Court Rules, Rule 9.9(e) explicitly provides that a party who fails to comply with the delays established by La. Code Civ. P. art. 966, "may forfeit the privilege of oral argument."
The hearing on the motions for summary judgment filed by BRGMC and HHS was held on February 7, 2022. The trial court addressed the untimelmess of the Kinsleys' opposition, which was acknowledged by counsel for the Kinsleys. The trial court strictly applied the time deadline outlined in La. Code Civ. P. art. 966(B)(2), and ruled that the Kinsleys' untimely opposition would not be considered. The trial court also found that the district court rules provided that late-filed oppositions meant that the Kinsleys had forfeited their right to oral argument. The Kinsleys' counsel proffered the opposition, which was accepted by the trial court. After BRGMC and HHS argued the merits of their motions, the trial court granted summary judgment to both defendants based on the evidence submitted in support of the motions. A judgment dismissing all of the Kinsleys' claims against BRGMC and HHS was signed on March 23, 2022, in accordance with the trial court's oral ruling granting the summary judgments. The Kinsleys filed this appeal, arguing that the trial court erred in striking their opposition, in not allowing them oral argument, and in granting the summary judgments against them.
After the record was lodged, this court issued a briefing schedule requiring the Kinsleys to file their appellant brief by December 16, 2022. When no brief was filed by that deadline, this court issued a notice of abandonment on December 27, 2022, noting that the appeal would be dismissed unless the Kinsleys filed a brief with this court on or before January 26,2023. Mr. Kinsley timely filed a motion for extension of time to file his appellant's brief, and this court granted the extension, giving a new deadline for the brief on or before February 2, 2023. Mr. Kinsley filed a brief on February 2, 2023, but this court marked the brief as non-compliant. Then BRGMC and HHS filed a joint motion to dismiss the appeal on February 7, 2023, the same day that Mr. Kinsley filed an acceptable brief. This court denied the motion to dismiss on March 29, 2023, in a separate unpublished action. Thus, the merits of the appeal are now considered.
LAW AND ANALYSIS
The Louisiana Supreme Court resolved the issue of whether a trial court retains discretion to accept a late-filed opposition to a motion for summary judgment in Auricchio v. Harriston, 2020-01167 (La. 10/10/21), 332 So.3d660. In that case, the supreme court succinctly stated:
The clear and unambiguous language of Article 966(B)(2) says that, absent the consent of the parties and the court, an opposition shall be filed within the fifteen-day deadline established by the article. The word "shall" is mandatory. La. R.S. 1:3. Under well-established rules of interpretation, the word "shall" excludes the possibility of being "optional" or even subject to "discretion," but instead means "imperative, of similar effect and import with the word "must." Louisiana Fed'n of Tchrs. v. State, 2013-0120 (La. 5/7/13), 118 So.3d 1033, 1051. This interpretation also does not lead to absurd consequences. Summary judgments are intended to "secure the just, speedy, and inexpensive determination of every action." La. Code Civ. P. art. 966(A)(2). Limiting judicial discretion by setting a firm deadline for filing an opposition furthers this end. That is a rational legislative choice and must be applied as written.
The legislative history of Article 966(B) reinforces our interpretation of its clear wording. The 2015 amendment removed language that expressly gave the trial court the discretion, upon a showing of "good cause," to afford additional time to oppose a motion for summary judgment. By removing the discretionary language and replacing it with mandatory language, we must assume the legislature intended to change the law to eliminate the previously afforded discretion. "[W]hen the legislature changes the wording of a statute, it is presumed to have intended a change in the law." Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42.Auricchio, 332 So.3d at 663 (emphasis in original).
Pursuant to Auricchio and the language of La. Code Civ. P. art. 966(B)(2), the trial court correctly refused to consider the Kinsleys' late-filed opposition. The Kinsleys argue that BRGMC and HHS were not prejudiced by the late filing; but, prejudice is irrelevant. The statute mandates compliance without regard to cause or prejudice. Auricchio, 332 So.3d at 663. See also Hooper v. Lopez, 2021-1442 (La.App. 1st Cir. 6/22/22), 344 So.3d 656, 663, writ denied. 2022-01421 (La. 11/22/22), 350 So.3d 501. Therefore, the Kinsleys' contention that the trial court erred in refusing to consider their untimely opposition lacks merit.
The Kinsleys also insist that the trial court erred in not allowing them to present oral argument at the hearing on the motions for summary judgment. We note, however, that oral argument is a privilege, not a right, and is normally forfeited by the failure to comply with filing guidelines. See Service One Cable T.V., Inc. v. Scottsdale Ins. Co., 2011-1470 (La.App. 1st Cir. 2/10/12), 2012 WL 602211, *2 n. 2 (unpublished). Furthermore, Louisiana District Court Rule 9.9(e) clearly mandates that to ensure oral argument at the hearing on a motion for summary judgment, the opposition must be timely filed. Therefore, under the facts of this case, we find no abuse of the vast discretion of the trial court in denying the Kinsleys the privilege of oral argument.
Finally, the Kinsleys argue that the evidence presented a genuine issue of material fact as to whether Mr. Kinsley was injured due to a foreign substance or an unreasonably dangerous condition on the hospital floor. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. McDowell v. Feldman, 2021-0462 (La.App. 1st Cir. 12/22/21), 341 So.3d 71, 74, writ denied. 2022-00158 (La. 3/15/22), 334 So.3d 394. The party moving for summary judgment bears the burden of proof. La. Code Civ. P. art. 966(D)(1). However, if the mover will not bear the burden of proof at trial, the moving party must only point out that there is absence of factual support for one or more elements essential to the adverse party's claims. Id. Thereafter, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. Id.
After a careful review of the record, we conclude that BRGMC and FHS presented sufficient evidence to establish that there is no genuine issue of material fact concerning the existence of a foreign substance or an unreasonably dangerous condition in the hallway outside of the hospital Chapel on the day that Mr. Kinsley allegedly slipped and fell. We make special note that the Kinsleys did not object to any of the evidence filed in support of the motions for summary judgment. Therefore, the trial court was required to consider the evidence. See La. Code Civ. P. art. 966(D)(2). The undisputed evidence reveals that the carpet in the hallway was shampooed more than two full days before the incident occurred. Mr. Kinsley acknowledged in his deposition testimony that the carpet was not wet when he arrived for his program early on October 1, 2014. Mr. Manuel stated that he personally inspected the carpet on Monday, September 29,2014, after the carpet had been cleaned the night before, and the carpet was clean and dry on Monday. There is nothing in the record to suggest that the carpet was wet on Wednesday, October 1, 2014, other than Mr. Kinsley's self-serving statements in his deposition that were not corroborated by any evidence. Unsupported speculation and mere argument of a possibility do not warrant a finding of a genuine issue of material fact. See McDowell, 341 So.3d at 76. Additionally, having found the absence of evidence for the alleged unreasonably dangerous condition, we need not consider whether the evidence created an issue of fact as to any other element of the Kinsleys' negligence action. Id. Therefore, BRGMC and HHS were entitled to summary judgment as a matter of law.
CONCLUSION
We affirm the trial court judgment rendered on March 23, 2022, in favor of Baton Rouge General Medical Center and Hospital Housekeeping Systems, L.L.C., and dismissing Steven G. Kinsley and Robie Kinsley's claims against them. All costs of this appeal are assessed to plaintiffs-appellants, Steven G. Kinsley and Robie Kinsley.
AFFIRMED.
MILLER, J., concurring.
1 agree with the majority decision herein affirming the trial court judgment rendered on March 23, 2022, in favor of Baton Rouge General Medical Center ("BRGMC") and Hospital Housekeeping Systems, L.L.C. ("HHS"), and dismissing Steven G. Kinsley and Robie Kinsley's claims against them, but for a different reason. Excerpts of Mr. Kinsley's deposition were submitted by BRGMC and HHS in support of their motions for summary judgment. Mr. Kinsley testified that the carpet was wet. By referring to Mr. Kinsley's testimony as "self-serving" and then disregarding it, I believe the majority has made a credibility determination which is better left to the ultimate trier of fact. An affidavit or deposition testimony which is devoid of specific underlying facts may not be legally sufficient to defeat summary judgment but there is no prohibition on a party testifying on their own behalf. See LeBlanc v. Michael E. Powers Construction, Inc., 2021-0267 (La.App. 1st Cir. 10/18/21), 2021 WL 4844340, *4 (unpublished); see also Hooper v. Lopez. 2021-1442 (La.App. 1st Cir. 6/22/22), 344 So.3d 656, 667, Welch, J., concurring in part and dissenting in part, as clarified on reh'g (Sept. 1, 2022), writ denied, 2022-01421 (La. 11/22/22), 350 So.3d 501, reconsideration not considered, 2022-01421 (La. 2/7/23), 354 So.3d 663.
Here, the record reveals an absence of factual support to find actual or constructive knowledge of a hazardous condition by BRGMC or HHS, so I find that the trial court did not err in granting summary judgment in favor of BRGMC or HHS. Furthermore, since there is an absence of evidence to meet the Kinsley's burden of proof regarding a hazardous condition and knowledge thereof, it is not necessary to consider whether the evidence created an issue of fact as to any other element of their negligence action. See McDowell v. Feldman. 2021-0462 (La.App. 1st Cir. 12/22/21), 341 So.3d 71,76, writ denied, 2022-00158 (La. 3/15/22). 334 So.3d 394.