Opinion
NUMBER 2022 CA 0203.
09-16-2022
Karen Carter WOLFE v. QUAD-AREA COMMUNITY ACTION AGENCY, INC.
Trent J. Moss , Galen M. Hair , Metairie, LA, Counsel for Plaintiff/Appellant, Karen Carter Wolfe. Brett M. Bollinger , Jeremy H. Call , Jeffrey E. McDonald , Brad D. Farrand , Matthew A. Ziifle , L. Peter Englande , Covington, LA, Counsel for Defendant/Appellee, Quad-Area Community Action Agency, Inc. BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
Trent J. Moss , Galen M. Hair , Metairie, LA, Counsel for Plaintiff/Appellant, Karen Carter Wolfe.
Brett M. Bollinger , Jeremy H. Call , Jeffrey E. McDonald , Brad D. Farrand , Matthew A. Ziifle , L. Peter Englande , Covington, LA, Counsel for Defendant/Appellee, Quad-Area Community Action Agency, Inc.
BEFORE: WHIPPLE, C.J., GUIDRY, AND WOLFE, JJ.
GUIDRY, J.
This matter is before us on appeal by plaintiff, Karen Carter Wolfe, from a summary judgment granted in favor of defendant, Quad-Area Community Action Agency, Inc. (QuadCAA). For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This litigation arises following a weatherization project performed at the home of plaintiff Wolfe. In 2018, QuadCAA subcontracted with Public Construction, Inc. to perform weatherization services on plaintiffs home. Thereafter, on or about May 1, 2019, plaintiff filed the instant suit against QuadCAA, asserting claims of negligence, breach of contract, and breach of express warranty. Plaintiff alleged that as a result of the weatherization project performed on her home, she suffered damages that included increased electricity bills and property damage, among others.
On June 30, 2021, QuadCAA filed a motion for summary judgment seeking dismissal of plaintiffs claims and contending: (1) that it was entitled to immunity under La. R.S. 9:2771 and/or governmental contractor immunity, and (2) that plaintiff was unable to meet her evidentiary burden of proving a causal connection between any work performed on her home and the damages asserted. The motion for summary judgment was heard by the trial court on October 21, 2021, after which the trial court took the matter under advisement. A judgment was signed on December 7, 2021, granting QuadCAA's motion and dismissing plaintiff's claims with prejudice. The plaintiff now appeals, contending, essentially, that the trial court erred in granting QuadCAA's motion for summary judgment where a material issue of fact remains regarding "causation."
DISCUSSION
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. Georgia-Pacific Consumer Operations, L.L.C. v. City of Baton Rouge, 17-1553, p. 8 (La. App. 1st Cir. 7/18/18), 255 So.3d 16, 21, writ denied, 18-1397 (La. 12/3/18), 257 So.3d 194. A motion for summary judgment shall be granted only if the motion, memorandum, and supporting documents admitted for purposes of the motion for summary judgment show there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3) and (4). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact 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. Higgins v. Williams Energy Partner, L.P., 17-1662, p. 14 (La. App. 1st Cir. 4/10/19), 280 So.3d 195, 203, writ denied, 19-00722 (La. 9/6/19), 278 So.3d 371. In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. Alvarado v. Lodge at the Bluffs, L.L.C., 16-0624, p. 5 (La. App. 1st Cir. 3/29/17), 217 So.3d 429, 432, writ denied, 17-0697 (La. 6/16/17), 219 So.3d 340.
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the matter before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). Thereafter, if the adverse party fails to produce factual evidence sufficient to establish the existence of a genuine issue of material fact, the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(D)(1); Alvarado, 16-0624 at p.5, 217 So.3d at 432. Because it is the substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Georgia-Pacific Consumer Operations, L.L.C., 17-1553 at p. 9, 255 So. 3d at 22.
In support of its motion for summary judgment, QuadCAA introduced the sworn testimony, by affidavit, of Margaret Gaudin, assistant director of the weatherization assistance program at QuadCAA at the time services were performed on plaintiff's home. QuadCAA also provided affidavits of James A. Clark, Jr., president and director of Asyndant Energy, Inc., and Julie Hufft, owner and operator of Colonial Inspection Services, L.L.C.
Relevantly, attached to Ms. Gaudin's affidavit was a letter to plaintiff from the Louisiana Housing Corporation, dated December 7, 2018, stating that "[w]e conducted a thorough investigation of the work performed in February 2018, as well as the subsequent home events that occurred prior to your call in September 2018.... This review indicates that the necessary weatherization measures were properly installed and completed ... and the issues with moisture that you are currently experiencing in your home are not a result of the weatherization work that was performed." Mr. Clark with Asyndant Energy stated that he had met with plaintiff at her home in October 2018, was unqualified to render an opinion as to the cause of any of the issues or problems alleged by plaintiff, and was not able to opine that, more probably than not, the work caused or contributed to the damages alleged. Ms. Hufft performed a limited inspection of the home and was not able to opine that, more probably than not, the work caused or contributed to mold issues in the home.
In opposition to the motion, plaintiff submitted the affidavits of Adam Scott with Cutlass Claims Consultants, L.L.C. and Friedrich W.L. Gurtler with Gurtler Bros. Consultants, L.L.C., as well as her own. According to plaintiff, the damages outlined in her petition were the direct result of QuadCAA's faulty weatherization work and "[s]he knows this because prior to [QuadCAA's] faulty `weatherization' work, such damages did not exist, and after [QuadCAA's] faulty `weatherization' work, those damages quickly manifested." Mr. Scott inspected plaintiff's property and created an estimate of damages. Mr. Scott's affidavit states that he was hired to create an estimate of damages "caused by improper weatherization work." Finally, Mr. Gurtler, who inspected plaintiff's property for visible mold growth, identified and quantified fungal/mold spore types in plaintiff's residence. In his report recommendation, Mr. Gurtler opined that "[t]he exhaust vent installed on the ceiling above the second-floor landing may be permitting air from the upper attic space to enter the living space, thereby increasing humidity levels within the house."
We must conclude, following our de novo review of the motion, that the trial court did not err in granting summary judgment in favor of QuadCAA. QuadCAA pointed out the absence of factual support for an essential element of plaintiff's claims—a causal connection between the work performed and plaintiff's alleged injuries. Thereafter, the burden shifted to plaintiff, and we conclude that plaintiff failed to produce factual evidence sufficient to establish the existence of a genuine issue of material fact. See La. C.C.P. art. 966(D)(1).
In a negligence action under La C.C. art. 2315, the plaintiff bears the burden of proving fault, causation, and damages. The plaintiff bears the burden of proving every element of her case, including the cause in fact of damage, by a preponderance of the evidence, that is, whether it is more likely than not that the harm was caused by the tortious conduct of one or more defendants. Gaspard v. Safeway Insurance Company , 14-1676, p. 4 (La. App. 1st Cir. 6/5/15), 174 So.3d 692, 694, writ denied , 15-1588 (La. 10/23/15), 184 So.3d 18. In addition, in order to prevail on a breach of contract claim, the plaintiff must prove by a preponderance of the evidence that (1) defendant owed an obligation; (2) defendant failed to perform that obligation; and (3) defendant's failure resulted in damages to the plaintiff. Hayes Fund for the First United Methodist Church of Welsh, L.L.C. v. Kerr-McGee Rocky Mountain, L.L.C. , 14-2592, p. 7 (La. 12/8/15), 193 So.3d 1110, 1115. Further, a plaintiff must show that the failure to conform to an express warranty caused his injuries. See Arcadian Corporation v. Olin Corporation , 01-1060, p. 16 (La. App. 3d Cir. 5/8/02), 824 So.2d 396, 406, writ denied , 02-1930 (La. 10/25/02), 827 So.2d 1174; see also Engineering Sales, Inc. v. A-1 Roofing & Sheet Metal Works, Inc. , 246 So.2d 242, 246 (La. App. 1st Cir.1971).
Plaintiff produced no evidence as to causation in opposition to the summary judgment. Cause in fact is generally a "but for" inquiry such that if the plaintiff probably would have not sustained the injuries but for the defendant's substandard conduct, the conduct is a cause in fact. Roberts v. Benoit, 605 So.2d 1032, 1042 (La. 1991). Furthermore, affidavits with conclusory allegations which are devoid of specific facts do not satisfy the requirements that a summary judgment be made on personal knowledge, West v. Hornsby, 20-0871 (La. App. 1st Cir. 2/25/21), 2021 WL 734027, *5, and an expert's speculation that a material fact possibly exists or may have occurred is not sufficient to create a genuine issue precluding summary judgment. Florida Gas Transmission Company, L.L.C. v. Texas Brine Company, L.L.C., 18-0218, p. 5 (La. App. 1st Cir. 1/11/19), 272 So.3d 547, 550, writ denied, 19-00510 (La. 9/24/19), 279 So.3d 385, and writ denied, 21-00793 (La. 6/29/21), 319 So.3d 301.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A).
In this matter, we find the affidavits of plaintiff and Mr. Gurtler, as well as the affidavit of Mr. Scott, to be devoid of specific underlying facts establishing that the actions, or inaction, of QuadCAA caused injury. While it may be true that plaintiff experienced additional problems with her home after the subject weatherization project, the plaintiff may not satisfy her burden and prove causation by resting on mere allegations and conclusory statements which merely restate the allegations of her petition. See Hardison v. Byrne, 15-0111, p. 9 (La. App. 4th Cir. 12/9/15), 182 So.3d 1110, 1116. As for Mr. Scott's statement that damages were "caused by improper weatherization work," we are unable to find any factual support for his allegation. Likewise, as it concerns Mr. Gurtler's statement that an installed exhaust vent "may" be increasing humidity levels within plaintiff's home, we are unable to find reference to any evaluation of the vent to support such an assertion, nor are we able to find any explanation of how or why Mr. Gurtler reached his conclusion.
Although factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Salvador v. Main Street Family Pharmacy, L.L.C., 17-1757, p. 6 (La. App. 1st Cir. 6/4/18), 251 So.3d 1107, 1112. The affidavits in opposition to the motion set forth conclusory allegations and unsupported speculation, and thus, do not raise any material facts that would preclude summary judgment. The plaintiff herein did not successfully rebut the defendant's showing in regard to causation. Accordingly, we find no genuine issue of material fact remaining. Summary judgment was appropriate.
In addition, we find that none of evidence "suggests" negligence on the part of the defendant, which would allow us to infer that the defendant's conduct more probably than not caused the plaintiff's injury. See generally Salvant v. State , 05-2126, p. 18 (La. 7/6/06), 935 So.2d 646, 659.
We note that, on the motion before us, there is no evidence of a breach of contract (and no evidence of an express warranty). Nevertheless, as expressed above, there is no evidence that any failure to perform caused the plaintiff's damages.
CONCLUSION
For the above and foregoing reasons, we affirm the December 7, 2021 judgment of the trial court, granting Quad-Area Community Action Agency, Inc.'s motion for summary judgment and dismissing the claims of Karen Carter Wolfe. All costs of this appeal are assessed to the plaintiff/appellant, Karen Carter Wolfe.