Helen Amarena Christakis and Nicholas Christakis VS Clipper Construction, L.L.C., Clipper Estates Master Homeowners' Association, Inc., ABC Insurance Company(s)
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NQ 2012 CA 1638 HELEN AMARENA CHRISTAKIS AND NICHOLAS CHRISTAHIS VERSUS G CLIPPER CONSTRUCTION L CLIPPER ESTATES C MASTER HOMEOWNERS ASSOCIATIOIV INC ABC INSURANCE COMPANY S Judgment Rendered APR 2 6 2013 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 2008 15897 The Honorable Martin E Coady Judge Presiding x Wayne Counsel for Plaintiffs Appellants A Collier Helen Amarena Christakis and Slidell Louisiana Nicholas Christakis Glen B Adams Denia S New Counsel for Defendant Appellee Clipper Estates Master Aiyegbuis Orleans Louisiana Homeowners Association Inc Michael S Futrell Counsel for Defendant Appellee Metairie Louisiana Scottsdale Insurance Co BEFORE GUIDRY CRAIN AND THERIOT JJ THERIOT J In this slip and fall suit the plaintiffs appeal a summary judgment dismissing their claims with prejudice against one defendant We affirm FACTS AND PROCEDURAL HISTORY On April 2 2008 a rainy day Helen Christakis slipped and fell on a wet welcome mat outside the front door of a home in Clipper model Estates Subdivision Several entities including Clipper Construction L C Clipper Construction and Clipper Estates Master Homeowners Association Ina CEMHA maintained offices in the model home Mrs Christakis entered the model home on the day of the accident to drop off a check to CEMHA for her homeowners association dues Mrs Christakis and her husband Nickolas Christakis filed a suit far damages against CEMHA and Clipper Construction CEMHA filed a motion for summary judgment which was granted by the trial court on May 14 2012 Plaintiffs filed a motion for new trial which was denied and this appeal followed 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 for all or part of the relief prayed for by a litigant All Crane Rental of Georgia Inc v Vincent 10 p 4 1 Cir 9 47 So3d 1024 1027 writ 0116 App La 10 10 denied 10 La 11 49 So3d 387 2227 10 19 A motion for summary judgment should only be granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the movant is entitled to summary judgment as a matter of law La C 966 P B 2 The burden of proof on a motion for summary judgment remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the movant burden on the motion does not require him to negate all s essential elements of the adverse party claim action or defense but rather s to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense s Thereafter if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact La C art 966 P 2 C Once the motion for summary judgment has been properly supported by the moving party the failure of the non party to produce evidence of a moving material factual dispute mandates the granting of the motion Pugh v St Tammany Parish School Board 07 p 2 1 Cir 8994 1856 La App 08 21 2d So 95 97 on rehearing writ denied 08 La 11 996 So 2316 08 21 2d 1113 see also La C art 967 P B In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial s court determination of whether summary judgment is appropriate Sanders v Ashland Oil Inc 96 p 7 1 Cir 6 696 So 1031 1751 App La 97 20 2d 1035 writ denied 97 La 10 703 So 29 Because it is the 19ll 97 31 2d applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law Louisiana Code of Civil Procedure article 967 provides B When a motion for summary judgment is made and supported as provided above an adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or as otherwise provided above must set forth specific facts showing that there is a genuine issue for triaL If he does not so respond summary judgment if appropriate shalI be rendered against him 3 applicable to this case Walker v Phi Beta Sigma Fraternity Rho Chapter 2345 La 96 p 6 1 Cir 12 706 So 525 528 App 97 29 2d We are responsible for the damage occasioned by things which we have in our custody La C art 2317 However the owner or custodian of a thing is only answerable for the damage caused by its ruin vice or defect upon a showing that he knew or in the exercise of reasonable care should have known of the ruin vice or defect which caused the damage that the damage could have been prevented by the exercise of reasonable care and that he failed to exercise such reasonable care La C art 1 2317 CEMHA pointed out in its motion for summary judgment that the plaintiffs had no evidence to prove an essential element of their claim i e that CEMHA had notice of an unreasonably dangerous condition on the premises priar to Mrs Christakis accident In support of its motion for s summary judgment CEMHA offered the affidavit of Ludy Pittman an employee of Clipper Construction who was working in the model home at the time of the accident Ms Pittman affidavit states that prior to Mrs s s Christakis alleged slip and fall no other person advised that the front entrance or the welcome mat was wet In response to the motion for summary judgment the plaintiffs filed Mrs Christakis affidavit stating that CEMHA was familiar with the s conditions at the entranceway and knew or should have known that a rain event causes an unsafe condition at the entranceway This affidavit is insufficient to establish that the plaintiffs will be able to carry their burden of proof as it simply contains conclusory allegations of fact rather than specific facts based upon personal knowledge Affidavits with conclusory allegations of fact which are devoid of specific facts are not sufficient to 4 defeat summary judgment Cheramie Services Inc v Shell Deepwater Production Inc 09 La 435 So 1053 1062 The plaintiffs 1633 23110 3d did not come forward with any evidence to show that they would be able to carry their burden of proving actual or constructive knowledge by CEMHA at trial therefore there is no genuine issue of material fact and summary judgment is appropriate Plaintiffs also argue that the court erred in proceeding to summary judgment before the case was set for trial and before adequate discovery was complete Louisiana Code of Civil Procedure article 966 provides that 1 C summary judgment may be granted a adequate discovery or after a fter case is set for trial Trial courts in Louisiana have broad discretion when regulating pretrial discovery which will not be disturbed on appeal absent a clear showing of abuse Daniels v USAgencies Cas Ins Co I1 p 6 1357 App La 1 Cir 5 92 So 1049 1054 It is not an abuse of a trial 12 3 3d s court wide discretion to entertain a motion for summary judgment before discovery has been completed It is within the trial court discretion to s render a summary judgment or require further discovery While parties must have a fair opportunity to conduct discovery and present their claims there is no absolute right to delay action on a motion for summary judgment until discovery is complete Id This suit was filed three halfyears prior to the hearing on the a and motion for summary judgment Plaintiffs did not object at the hearing on the motion for summary judgment to the prematurity of the motion nor did plaintiffs request more time to conduct additional discovery Under these circumstances the trial court did not abuse its broad discretion in granting summary judgment before the completion of plaintiffs discovery 5 CONCLUSION The summary judgment dismissing plaintiffs ciaims against CEMI IA is affirmed Costs of this appeal are assessed to the plaintiffs Helen and Nickolas Christakis AFFIRMED 6
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