Robert L. Lucien VS Entergy of Louisiana, LLC and ABC Professional Tree Service, Inc.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUIS ANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1882 ROBERT L LUCIEN VERSUS ENTERGY OF LOUISiANA LLC AND ABC PROFESSIONAL TREE SERVICE INC Judgment Rendered June 7 2013 APPEALED FROM THE TWENTY JUDIC DISTRICT COURT FIRST AL IN AND FOR PARISH OF ST HELENA HE 1 TE ST OF LOUISIANA DOCKET NUMBER 21263 HOIVORABLE BRENDA BEDSOLE RICKS JUDGE Peggy Baton M Hairston Robinson Rouge Louisiana Attorneys for Plaintiff Appellant Robert L Lucien Sr and Sonja D Kirk New Orleans Louisiana Roger C Linde Kimberly G Anderson Metairie Louisiana Attorneys for Defendants Appellees Energy of Louisiana LLC and ABC Professional Tree Services Inc BEFORF KUHN PETTIGREW AND McDONALD JJ C Ec 7 I czE J C ov w c I McDONALD J appellant Plaintiffi appeals the dismissal with prejudice of his lawsuit For the following reasons we affirm FACTS On January 28 2011 plaintiff filed suit against Entergy Louisiana L C Entergy and ABC Professional Tree Services lnc ABC alleging that some time in January 2010 a Yamaha Grisly 4 Wheeler was removed firom a building on his property on the same day that tree trimming work along the power lines on his property was done by ABC Plaintiff alleges that after ABC completed its work the gate surrounding an enclosed building protecting the vehicle was left open and the vehicle was stolen Plaintiff contends that but for the negligence and direct or actions of defendants his vehicle would not have been taken It is further alleged that Entergy and ABC are jointly responsible because they were and are partners in business and Entergy commissioned the services of ABC to work on plaintiff property on the day and time that plaintiffs vehicle s disappeared It is alleged that ABC breached its duty of care when it failed to secure the premises upon leaving which resulted in plaintiff vehicle being taken s Entergy is responsible by virtue of its business relationship with ABC and is responsible for ABC failure to cany out procedures that would have secured s s plaintiff property On April 19 2011 before conducting any discovery plaintiff filed a motion for summary judgment It was set to be heard on June 4 2011 ABC counsel s had a longstanding conflict on that date When plaintiffs counsel was contacted regarding the hearing she originally agreed to a continuance to the next available court date and signed a joint motion for continuance to reset the summary judgment hearing However she subsequently changed her mind and advised counsel for ABG that she was opposed to the continuance A motion for continuance was filed by ABC which the h court granted and the hearing was reset for August 26 201 I On June 17 2011 defendant ABC mailed inten and requests for production to plaintiff counsel Defense counsel subsequently filed a Rule 10 s 1 certification that he had written to plaintiff counsel on July 20 2011 requesting a s telephone conference on July 28 201 l to amicably resolve the discovery issues and plaintiff counsel did not participate s On August 15 2011 a motion to cotnpel discovery was filed A rule for the plaintiff to show cause why he should not be compelled to respond to the interrogatories and request for production of documents was ordered to be heard on October 21 2011 After the heacing on October 21 201 l the court ordered plaintiff to respond to discovery A judgmeilt was signed by the trial court on February 15 2012 ordering that plaintiff had thirty days in which to respond to defendant sdiscovery requests Plaintiff motion for summary judgment was continued without date s Not having received any response to its discovery requests on March 2 2012 ABC filed a motion to dismiss for failure to comply with discovery order or alternatively a motion for summary judgment The hearing on this motion was held on June 22 2012 s Entergy legal counsel was present and advised the cowt that ABC legal counsel represented s both Entergy and ABC in this matter and that Entergy concun in ABC s motions PlaintifPs counsel was not present The trial court asked a clerk representing the clerk of court whether service had been made on plaintif The stated clerk that personal service had been made on plaintift counsel on March s 15 2012 s ABC counsel told the trial coutt that nothing had been received in response to the h court October 21 2011 order regarding discovery requests s Further ABC counsel stated that she had been unable to contact plaintiff s s 3 counsel When she called the office no one answered and she was not provided the opportunity to leave a message A copy of the motion and exhibits were introduced into the record s ABC counsel represented that it had not received a title or evidence that plaintiff owned the vehicle in question She also pointed out that the timeline indicated that ABC and Gntergy were on plaintiff property on s January 14 2010 doing so maintenance work According to plaintiff petition ne s for damages it was alleged that when they left the property the gate was left open resulting in plaintiff Yamaha Grisly 4vehicle being taken The vehicle s wheeler had been stored for years prior to the defendants presence on the property plaintiff did not call the sheriff to report that the vehicle had been stolen until February 1 2010 The trial court granted the motion ABC counsel advised the court that she s would draft and circulate a judgment Subsequently the judgment was signed granting defendants motion to dismiss for failure to comply with discovery order or alteinatively motion for summary judgment and dismissing plaintiff claims s with prejudice Thereafter plaintiff s attorney filed a motion to strike or for a new trial which the trial court denied The judg r on iune 22 2012 and signed nent endered July 19 2012 appealed by plaintiff s original counsel is the matter we are addressing DISCUSSION Plaintiff alleges that the trial court committed manifest error when the court held the hearing on the defendant motion for summary judgment s appellee because plaintiff did not have representation by legal counseL The appellant plaintiff further asserts that the trial court was informed of plaintift lack of s This appeal was briefed by a different cotmsel from the one who origivally represented plaintiff 4 professional representation in advance of the hearing Therefore plaintiff maintains he was denied a fair hearing in violation of his constitutional rights t is also alleged that the trial court denial of the motion for a new trial was a denial of s procedural due process and that there were motions from both parties that are unresolved The facts in the matter before us reveal that after filing the original petition plaintiff failed to make a good faith effort to comply with discovery s ABC counsel confirmed that the interrogatories and requests for production were unanswered even after the trial court order of October 21 2011 giving plaintiff s thirty additional days to comply Defendant noted that there were some telephone conversations with opposing counsel but there was never any formal response to its discovery requests Additionally the necessary documentation that would have established ownership in the vehicle allegedly taken was never received Plaintiff Robert Lucien addressed correspondence dated June 27 2012 to Kimberly Anderson ABC counsel who had filed the motion for dismissal and for s summary judgment In his letter he informed her that he had received her proposed judgment of the trial court order granting the motions heard on June 22 s 2012 He implored her to give him a chance to offer a defense as he was unrepresented at the hearing and lost by default Also his motion for new trial which was denied was premised on having been unrepresented at the hearing We note that the plaintiff alleges he noticed the vehicle was removed on the same day that the tree trimming was done by defendants Entergy and ABC are alleged to be jointty responsible because they are partners in business and Entergy commissioned the work and services of ABC on pproperty s laintif on the day and time that pproperty disappeared There are no facts s laintiff establishing that the vehicle disappeared on the same day and time that 5 I defendants were on plaintiff property In fact the theft of the vehicle was not s reported to the Sherriff sOffice until February l 2010 The Code of Civil Procedure provides ample directions concerning discovery and the failure to respond at all or ineffectively See La C arts 1420 P 1475 The jurisprudence fully substantiates the necessity to use dismissal sparingly and as a last resort See Hutchi v Westporl Ins Corp 04 p 2 s zso 1592 La 04 08 11 886 So2d 438 440 Lirette v Babin Farrnr Inc 02 p 3 1402 La App 1 Cir 4 843 So 1141 1143 03 2 2d proceeding against him is unjust The plaintiff maintains that the Defendant asserts that the inaction of plaintiff warrants harsh sanctions However regardless of our findings on dismissal we are left with a grant of summary judgment to consider More to the point it is not only plaintiff who is entitled to jusrice The record indicates that the defendants responded to every communication by plaintiff On the other hand plaintiff failed to respond to any of defendants attempts to get information and also failed to attend any hearings to explain his position Defendants maintain that pfailure to cooperate in discovery IaintifPs made it itnpossible for the defense to proceed and placed the defense at a disadvantage if t1 had to try the case without the discovery ey At the June 22 2012 dismissal judgment hearing neither plaintiff summary nor his counsel was present although the trial court verified that notice had been served on plaintiff counsel s Louisiana Code of Civil Procedure art 966 2 A provides that The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action The procedure is favored and shall be construed to accomplish these ends The code also provides that it is not necessary to negate all elements of the adverse party claim but s rather 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 La C art 966 C s P 2 6 Among the speculative allegations with no evidence to confirm there was no evidence thaY plaintiff owned the property he claimed was taken an essential element of his claim We have conducted a de novo review of this record as is required when an appellate court reviews a trial court judgment on a motion for summary s judgment See Yokum v 615 Bour Slreet L 07 p 25 La 2 bon C 1785 08 26 977 So 859 876 The motion to file a late brief is granted and the brief is made 2d part oftherecord We find no error by the trial court and concur in its judgment granting the motion far summary judgment Accordingly the judgment appealed is affirmed Costs are assessed against plaintiff Robert Lucien AFFIRMED MOTION GRANTED 7
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