Roddy Chiasson VS J.E.L., LLC, ABC Insurance Company, Papa Bear's Pizza, LLC d/b/a Mike's Daiquiris & Grill, DEF Insurance Company, Circle K Stores, Inc. & XYZ Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 1 2012 CA 0929 RODDY CHIASSON VERSUS L E J LLC ABC INSLJRANCE COMPANY PAPA BEAR PIZZA S LLC DB MIKE DAIQUIRIS AND GRILL DEF INSi1RANCE AS COMPANY CIRCLE K STORES AND XYZ INSiJRANCE INC COMPANY DATE OF JUDGMENT MAR 2 1 2013 ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NiJMBER 574 SEC 27 PARISH OF EAST BATON ROUGE 840 STATE OF LOUISIANA HONORABLE TODD HERNANDEZ JUDGE Peyton P Murphy Baton Rouge Louisiana Counsel for Plaintiff Appellant Roddy Chiasson Mark D Plaisance Thibodaux Louisiana John P Wolff III Chad A Sullivan Counsel far Defendant Appellee Circle K Stares Inc Tori S Bowling Baton Rouge Louisiana f BEFORE KUHN PETTIGREW AND McDONALD JJ t t1 SS J AFFIRMED l w Q c I e Disposition KI JI IN J appellant Plaintiff Roddy Chiasson appeals the trial court judgment s granting summary judgrnent in favor of defendant Circle K Stores lnc appellee Circle K and dismissing his claims for damages after he sustained personal injuries in a bicycle accident We affirm FACTUAL AND PROCEDURAL BACKGROUND On January l 2009 Chiasson was riding his mountain bike in an area known as Tigertown in Baton Rouge generally traveling in an easterly direction to the Circle K convenience store located at 4405 Alvin Dark Avenue to pick up some bread and milk He traversed a vacant lot adjacent to the Circle K premises on one side and a shopping center located on Bob Pettit Blvd on the other where two bars JL Place and Mike Daiquiris were housed Chiasson drove over a s s speed bump allegedly situated primarily on the western side of the vacant lot and partially of the eastern side on the Circle K premises Once his front tire crossed over the speed bump he encountered a pothole and Chiasson was thrown off his bike approximately 6 feet He put his hand out to break the fall and landed on 8 the ground Chiasson sustained injuries to his left arm neck and back On January 29 2009 Chiasson filed this lawsuit naming Circle K and its insurer as defendants After answering the lawsuit Circle K filed a motion for summary judgment averring that it did not have custody control or garde of the leased premises and therefore it was entitled to be dismissed from the lawsuit The motion was continued to allow Chiasson mare time to conduct discovery On In his oxiginal and amending pefition Chiasson named various other defendants including the owners of the two bazs and their respective insurers the owners of the premises upon which the bars were located the owners and the lessees of the vacant lot and the owners of the Circle K premises 2 October 17 2011 the trial court heard the motion and granted summary judgment in favor of Circle K dismissing Chiasson claims with prejudice This appeal s followed DISCUSSION Summary judgment is proper if the pleadings depositions answers to interrogataries and admissions on file together with the affidavits if any 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 P C art 966B The initial burden of producing evidence at the hearing on the motion far summary judgment is on the mover Schultz v Guoth 2010 La 1 57 So 1002 1006 If the 0343 11 19 3d mover will not bear the burden of proofat trial on the subject matter of the motion they need only demonstrate the absence of factual support for one or mare essential elements of their opponent claim action or defense If the moving s parties point out that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense then the s nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial La C art 966C A summary judgment is reviewed on P 2 appeal de novo with the appellate court using the same criteria that govern the trial s court determination of whether summary judgment is appropriate i e Motions for summary judgment filed by defendants Carolyn Robert and Todd Sobert as lessees of the vacant lot and owners of the property upon which the bars were situtated defendants Papa Bear Pizza LLC d Mike Daiquiris and Grill Darin Adams John Landry s a bs and Gaffney Yonan LLC as owners of Mike Daiquiris and defendants JEL LLC Darin s Damas and John Landry as owners of 7L Place were also granted by the trial court after the s October 17 201 I heazing Chiasson has zppealed the trial court dismissal of these defendants s in separate appeals See Chiasson v JEL Inc 2012 2012 and 2012 La App 0930 0931 0932 lst Cir unpublished opinions The trial court denied a similar motion tor dismissal by summary judgment filed by the Circle K premises owners Rose Vaughan Robert Bennett Glynn Hadskey Mazgazetreview See La C arts 968 and 2083 That action has not yef been the Sisson and now deceased Norman Sisson subject of judicial P 3 determining whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law Samaha u Rau 2007 La 1726 08 26 2 977 So 880 882 2d 83 On appeal Chiasson urges that outstanding issues of material fact preclude Circle K dismissal from his lawsuit Chiasson contends that the language of the s lease between Circle K and the premises owners Rose Vaughan Robert Bennett Glynn Hadskey Margaret Sisson and now deceased Norman Sisson is ambiguous And pointing to deposition testimony of Circle K employee Nancy Lewis Chiasson maintains that it was Circle K duty to repair the pothole or that s at a minimum an outstanding issue of material fact exists as to whose duty it was to repair the pothole Contracts have the effect of law for the parties La C art 1983 The courts are obligated to give legal effect to contracts according to the true intent of the parties See La C art 2045 The true intent of the parties to a contract is to be determined by the words of the contract when they are clear explicit and lead to no absurd consequences See La C art 2046 When the words of a contract are clear and explicit and lead to no absurd consequences no further interpretation may be made in search of the parties intent Id In such cases the meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained ar contradicted by parol evidence See La C art 1848 Contracts subject to interpretation from the instrument four s carners without the necessity of extrinsic evidence are to be interpreted as a matter of law and the uae of extrinsic evidence is proper only where a contract is ambiguous after an examination of the four corners of the agreement It is only 4 when a contract is ambiguous that we may look to parol evidence to determine the intent of the parties See Guest House ofSlidell u Hills 2010 La App 1 st 1949 Cir 8 76 So 497 500 11 17 3d The lease agreement provides in pertinent part 9 MAINTENANCE LESSOR agrees to maintain in good repair the outside walls roof and floor of the building and surface of the parking areas sidewalks and driveways as well as the structural soundness of the building and all underground gas water and sewer pipes except those parts of such pipes as are in or directly beneath the floar of the building LESSEE agrees to keep the inside of the building in good repair including the plumbing electrical wiring air conditioning and heating equipment and those parts of underground gas water and sewer pipes as are contained in or are directly beneath the floor of the building and to paint the exterior walls and be responsible for all glass casualty damage and reasonable wear and tear excepted 22 COMMON AREAS LESSOR shall be responsible for cleaning and lighting the parking and other common areas of the shopping center but LESSEE shall bear a part of the cost of such cleaning and lighting in proportion to the number of square feet of floor space of the building leased by LESSEE as compared with the total number of square feet of floor space of all the buildings in the shopping center That part of the common areas which primarily serves the customers of the building leased by LESSEE shall be lighted at night during LESSEE business hours Upon the written S request of LESSEE LESSOR shall award a contract for cleaning the common areas to the lowest of three bidders one of whom may be LESSEE 30 COMPLETE AGREEMENT This lease contains a complete expression of the agreement between the parties and there are no promises representa ar inducements except such as are ions herein provided According to the unambiguous language of the lease agreement Vaughan Bennett Hadskey and the Sissons as lessors were required to maintain in good repair the surface of the parking areas sidewalks and driveways A photograph admitted into evidence by Chiasson shows that the pothole and that 5 portion of the speed bump that may be situated on the Circle K premises are located on the surface of the parking area Although Chiasson attempts to distinguish the area because it is gravel and the remainder of the parking area appears to be concrete we find this to be a distinction without relevance The photograph clearly shows the area as susceptible of parking in contradistinction from the inside of the building and those parts of underground gas water and sewer pipes as are contained in or are directly beneath the floor of the building Because that portion of the premises where the speed bump and pothole were located was the responsibility of the lessors Circle K did not have custody control or garde of the alleged unreasonable risk of harm so as to be liable to Chiasson for his injuries See Giorgio u Alliance Operating Corp 2005 La 1 0002 06 19 921 2d So 58 73 Accordingly the trial court correctly granted summary judgment in favor of Circle K and dismissed it from the lawsuit DECREE For these reasons the trial court judgment granting sumrriary judgment s and dismissing Circle K from this lawsuit is affirmed Appeal costs are assessed against plaintiff Roddy Chiasson appellant AFFIRMED 3 Chiasson asserted that Circle K undertook a duty to maintain the parking area where the pothole was located because its employees routinely cleaned the premises and offered assistance to him after the accident But Chiasson offered no evidence that Circle K had actual knowledge of the existence of the pothole prior to the accident which was located about 33 feet away from the building Thus these allegations are insufficient to impose a duty on Circle K to repair the pothole in that portion of the premises that the lessars had contractually agreed to maintain See La C arts 2315 and 23171 We also find no merit in Chiasson suggestion that because an s ice machine and pay phone were in the vicinity Circle K derived benefit from and exercised direction and control over the azea where the pothole was located In addition to a lack of actual knowledge of the presence of the pothole prior to the accident the record is devoid of any evidence showing that Circle K actual operated and derived a benefit from the ice machine or y the phone Thus Chiasson contention is without merit See Giorgio 921 So at 73 s 2d 6
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