Charlean F. Cotton VS Dollar Tree Stores, Inc.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL y FIRST CIRCUIT 1/ v 1 NUMBER 2413 CA 1103 y J.+ jt!% CHARLEAN F. COTTON VERSUS DOLLAR TREE STORES, INC. Judgment Rendered: FEB 1 $ 203 ¬ Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, Louisiana Docket Number C577294 Honorable Kay Bates, Judge Presiding k' k4[ a'f' it'X' a k'kA'ic'+ F John B. Lambremont, Sr. Counsel for Plaintiff, Baton Rouge, LA Charlean F. Cotton Sidney J. Angelle Brant J. Cacamo Counsel for Defendant/ Appellant, Dollar Tree Stores, Inc. New Orleans, LA John P. Wolff, III Counsel for Defendant/Appellee, Baton Rouge, LA Kimco Realty Corporation iC' ir X k 9i k'le' L" X% X X] Y BEFOI2E: WHIPPLE, C.J., WELCR AND CRAIN, JJ. WHIPPLE, C.J. In this appeal, a commercial lessee challenges the trial court' s judgment, granting the motion for summary judgment filed by the lessor of the premises and ordering the lessee to pay costs and fees incurred by or on behalf of the lessor. For the following reasons, we reverse and render. FACTS AND PROCEDURAL HISTORY This litigation arises out of an alleged slip and fall accident occurring on April 10, 2008, outside of the Dollar Tree store in the Hammond Aire Plaza shopping filed Cotton, center suit in Baton Rouge, Louisiana. against Dollar Tree Stores, Plaintiff, Charlean F. Ina (" Dollar Tree"), contending that she slipped on a large piece of paper on the sidewalk in front of the exit door of the Dollar Tree store, causing her to fall to the ground. She averred that Dollar Tree was negligent in: failing to inspect the sidewalk next to the entrance and exit dooxs properly and sufficiently; failing to observe and remove paper from the sidewalk area; allowing paper and trash to accumulate near its doors; failing to warn Cotton of paper and trash present and of the risks/ damages presented thereby; and any other acts of negligence that may be proven at trial of this matter. Thus, she contended that Dollar Tree was liable to her far the injuries she sustained. Thereafter, Cotton filed a First Supplemental and Amending Petition naming as an additional Realty"). defendant " Kimco Baton Rouge 666, Inc." (" Kimco 1 Kimco Realty, as landlord of the Hammond Aire Plaza, had entered into a Lease Agreement with Dollar Tree in 2000 for the retail space in which the Dollar Tree store is located. In her While Cotton listed this defendant as " Kimco Baton Rouge 666, Inc.," Kimco name in its Answer as " Kimco Realty Corporation." For ease, this defendant listed its will hereinafter be referred to as " Kimco Realty." 2 amending petition, Cotton contended that Kimco Realty was liable to her far the negligence of its employees in: failing to properly and sufficiently inspect the sidewalk next to the entrance and exit doors of the Dollar Tree store according to its obligations as a landlard; failing to observe and remove paper from the sidewalk area; allowing paper and trash to accumulate near its doors; failing to warn Cotton and others of the risks/ dangers presented by the accumulation of the paper and trash present; and any other acts of negligence that may be proven at trial of this matter. After Kimco Realty was named as a defendant, Kimco Realty filed a cross claim against Dollar Tree, contending that Dollar Tree was obligated under the terms of the Lease Agreement between the parties to defend, indemnify, and hold Kimco Realry harmless against Cotton' s claims. Kimco Realty further alleged that despite demand upon Dollar Tree, it had refused to defend and indemnify Kimco Realty. Thus, Kimco Realty sought to enforce the defense and indemnity provisions contained in the Lease Agreement between these parties. Thereafter, Kimco Realty filed a motion far summary judgment on the issue of Dollar Tree' s obligations for defense and indemnity under the Lease Agreement. Kimco Realty contended that tkie broad language of Term ll(A) of the Lease Agreement obligated Dollar Tree to defend and indemnify Kimco Realty against " all losses, claims, liabilities, injuries, expenses ( including legal fees), lawsuits and damages ... claimed to have been caused by or resulted from any act, omission or negligence of Tenant no matter where Kimco Realty averred that, because occurring...." Cotton had alleged negligence on the part of Dollar Tree, the Lease Agreement obligated Dollar Tree to defend and indemnify it against any claims by Cotton. 3 In response, Dollar Tree also filed a znotion for summary judgment, contending that it was entitled to judgment in its favar dismissing Kimco Realty' s cross claim. Specifically, llollar Tree contended that even if the court determined that Kimco Realty was entitled to reirnbursement of its defense costs and expenses under the Lease Agreement, Kimco Realty had admitted discovery through that it had not paid any e enses or costs associated with this litigation. Thus, Dollar Tree argued, Kimco Realty had no claim for reimbursement. Additionally, Dollar Tree argued that even if Term 11( A) required it to defend Kimco Realty for the negligence claims asserted by Cotton, Term 17 of the Lease Agreement specifically released Dollar Tree from " any and all liability for loss or damage caused by acknowledging that the Lease Agreement did casualty," z any not casualty." define " While liability" or Dollar Tree contended that the clear language of Term 17 specifically released it from any and all liability to Kimco Realty. Subsequently, Cottods claims against Dollar Tree and Kimco Realty were dismissed with prejudice, leaving Kimco Realty' s cross claim against zDollaz Tree had previously filed a motion for summary judgment seeking a determination tbat Kimco Realty had no cause of action against Dollar Tree for defense and indemnity. In the earlier motion for summary judgment, Dollar Tree had argued that while Term ll(A) of the Lease Agreement between the parties contained an indemnity provision, it further provided that " notlung contained in this Lease shall be interpreted to release Landlord from liability proximately caused by its own negligent acts." Thus, Dollar Tree argued that the Lease Agreement did not obligate it to defend and indemnify Kimco Realty against allegafions of Kimco Realty' s own negligence and that because Cotton had alleged specific acts of negligence on the part of Kimco Realty which were independent of the alleged acts of Dollar Tree, under the provisions of the Lease Agreement at issue, Dollar Tree was not required to defend or indemnify Kimco Realty. Following a hearing, the trial court denied Dollar Tree' s motion for summary judgment, and this court subsequently denied Dollaz Tree' s writ application. Cotton v. Dollar Tree Stores Inc., 2011 CW 1537 ( La. App. lsi Cir. ll/21/ 11) ( unpublished writ action). 4 Dollar Tree as the only remaining claim. The cross motions for summary judgment on the cross claim were then heard on March 11, 2013, and by judgment dated April 17, 2013, the trial court denied Dollar Tree' s motion, Kimco granted Realty' s motion, and ordered Dollar Tree " to pay all reasonable costs and reasonable fees incurred by or on behalf of Kimco Realty associated with the captioned litigation." From this judgment, Dollar Tree appeals.3 In its five assignments of error, Dollar Tree contends that the trial court erred in: 1) finding that Kimco Realty was the proper party to bring the claim for reimbursement of defense costs when Kimco Realty has not paid any fees or costs or sustained any loss in regard to this matter; 2) considering a statement in Glenn Brettschneider' s affidavit regarding Kimco Realty' s ultimate responsibility to repay its insurer for defense costs, fees and eXpenses, in violation of LSA-C.C.P. art. 967( A); 3) finding that Term 17 of the Lease Agreement applied only to property damage claims, separate and distinct from the liability claims asserted by Cotton herein; 30n July 30, 2013, this court issued a rule to show cause, ordering the parties to show why the appeal should or should not be dismissed as an appeal from a partial judgment that was not designated as final by the trial court as required by LSA-C. C.P. art. 1915( B). In the nile-to- show-cause order, the court also invited the trial court to sign a judgment with a LSA-C.C.P. art. 1915( B) designation. Cotton v. Dollar Tree Stores Inc., 2013 CA 1103 ( La. App. 1" Cir. 7/ 30/ 13) ( unpublished). The trial court subsequently signed an order designating its April 17, 2013 judgmenf as a final, appealable judgment pursuant to LSA- C. C.P. art. 1915( B)( 1). This court then maintained the appeal, but noted that the propriety of the LSA-C. C. P. art. 1915( B) designation was ultimately reserved to the panel considering the merits of the appeaL Cotton v. Dollar Tree Stores. Inc., 2013 CA 1103 ( La. App. ls` Cir. 10/ 8/ 13) ( unpublished). We note that the trial court' s April 17, 2013 judgment addresses the final remaining claim in the case below. In a per curiam opinion accompanying its order designating the judgment at issue as fina1, the trial court reasoned that if this court affirms the April 17, 2013 judgment, the only remaining issue related to this claim would be the amount of costs and fees incurred by Kimco Realty, and that if this court reversed the judgment, " the reversal would effectively put [ an] end to tlus litigation." Considering the foregoing, we find no abuse of discretion by the trial court in designating the April 17, 2013 judgment as final for purposes of immediate appeal. See R.J. Messineer, Inc. v. Rosenblum, 2004- 1664 ( La. 3/ 2/ OS), 894 So. 2d 1113, ll22. 5 4) considering a staternent in Giet n Brettschneider' s affidavit regarding his interpretation of Term 17 of tne Lease Agreement; and 5) finding that Term I 1 of the Lease Agreement required Dollar Tree to reimburse Kimco Reaity the defense c osts associated with defending Cotton`'s claims asserted against Kiznco Realty for Kimco Realty' s own negligence. Thus, Dollar Tree urges this court: to reverse the trial court' s judgment that granted Kimco Realty' s motion for summary judgment and denied Dollar Tree' s motion, to grant Dollar Tree' s motion for summary judgment, and to dismiss Kimco Realty' s cross claim with prejudice.4 BURDEN OF PROOF AND STANDARD OF REVIEW FOR SUMMARY JUDGMENT A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, show that there is no genuin issue as to material fact and 4A denial of a motion for ummary judgment is an interlocutory judgment that is not appealable and cannot be certified as such. LSA- C. C. P. art. 968; Ascension School Emplovees Credit Union v. Provost Salter Harper & 15` Cir. 3/ 23/ 07), 960 So. 2d 939, 940. Alford, L.L.C., 2006- 0992 ( La. App. When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all advexse interlocutoxy judgments prejudicial to him, in addition to the review of the final judgment. Dean v. Griffin Crane Steel, Inc., 2005- 1226 ( La. App. ls` Cir. 5/ 5/ 06), 935 So. 2d 186, 189 n.3. However, this matter is an appeal from a partial suminary judgment designated as final pursuant to LSA-C.C.P. art. 1915( B) and, tinus, is restricted to the assue of Kimco Realty' s entitlement to indemnification for defense costs. Nonetheless, this court has held that where the issues involved in the granting of a partial summary judgment aze the same as those presented in the opposing cross- motion for summary judgment denied by the trial conrt, the court of appeal may appropriately review the denial of the cross- motion for summary judgment. See State. Division of Administration, Office of Risk ManaQement v. National Union Fire Insurance Comnanv of Louisiana, 2010- 0689 ( La. App. 151 Cir. 2/ I1/ ll), 56 So. 3d 1236, I242 n.6, writ denied, 2o11- 0849 ( La. 6/ 3/ 11), 63 So. 3d 1023, and Dean, 935 So. 2d at 189 n.3. Moreover, in Hood v. Cotter, 2008- 0215 ( La. 12/ 2/ 08), 5 So. 3d 819, 823- 824, the Louisiana Supreme Court reviewed this court' s practice of considering interlocutory issues that are identical to those issues raised in a restricted appeal and concluded that the appallate court could exercise its supervisory jurisdiction t consider the identical or related interlocutory issue. Accordingly, because Kimco R alty' s entitlement to indemnification for defense costs was the issue addressed in both the grant of partial summary judgment and the denial of Dollaz Tree' s motion for summary, we will consider the trial court' s denial of Dollar Tree' s motion for summazy judgment herein. 6 that the mover is entitled tc judgrnent as a matter of law. LSA- C.C. P. art. 966( B)( 2). law and The summary judgment procedure is expressly favored in the is designed to the secure iust, speedy, and inexpensive determination of non- domestic civil actions. LSA- C. C. P. art. 966( A)(2). The mover bears the burden of proving that he is entitled to summary judgment. LSA-C. C.P. art. 966( C)( 2). Hawever, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual of elements 966( C)( 2). his opponenYs claim, support far one or more essential action, or defense. LSA-C. C. P. art. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party' s claim, action, or defense, then the non- moving parly must produce factual support sufficient 966( C)( 2). to satisfy his evidentiary burden at trial. LSA- C.C.P. art, If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on ihe mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue far trial. LSA-C. C.P, art. 967( B). If, on the other hand, the mover will bear the burden of proof at trial, that party must support his moYion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Hines v. a, rett, 2004r 0806 ( La. 6/ 25/ 04), 876 So. 2d 764, 766. Such an affirmarive showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial ar to submit an affidavit requesting additional time for discovery. Hines, 876 So. 2d at 766767. 7 In ruling on a motion far summary judgment, the trial court' s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable Hines, 876 So. 2d fact. at 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent' s favor. Willis v. Medders, 2000- 2507 ( La. 12/ 8/ 00), 775 So. 2d 1049, 1050. In determining whether suminary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court' s determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 20081262 ( La. App. lst Cir. 12/ 23/ 08), 5 So. 3d 238, 243, writ denied, 2009- 0166 La. 3/ 27/ 09), 5 So. 3d 146. DISCUSSION In Dollar Tree' s first assignment of error, it asserts that because Kimco Realty has not paid any fees or costs in defending Cotton' s suit against it, which expenses were instead incurred by Kimco Realty' s insurer, Kimco Realty cannot establish a claim for reimbursement of such costs under the indemnity provision of the Lease Agreement. In its second assignment of error, Dollar Tree argues that any statements in Glenn Brettschneider' s affidavit regarding Kimco Realty' s ultimate responsibility to repay its insurer for defense costs, fees and expenses do not comport with the requirements of LSA-C. C. P. art. 967( A) and, thus, could not be considered in support of Kimco Realty' s motion for summary judgment. The purpose of an indemnity agreement is to allocate the risk inherent in the activity between the parties to the contract. 8 Naquin v. Louisiana Po ver & Li ht ll56, 1161, Company, writ 2005- 2103 ( La. App. ls` Cir. 9/ 15/ 06), 943 So. 2d denied, 2006- 2476 ( La. 12/ 15/ 06), 945 So. 2d 691. The law permits an indemnitor, who is not at fault, to contractually indemnify an indemnitee, who is also not at fault, but such indemnity must be expressly provided for in the indemnity Corporation, 618 So. 2d 1 agreement. 19, 1022 ( La. Sandbom v. BASF R% vandotte App. 1' st Cir.), w- it denied, 625 So. 2d 1042 ( La. 1993). However, an indemnitor is not liable under an indemnity agreement until the indemnitee actually makes payment or sustains loss. Suire v. Lafavette Citv-Parish Consolidated Government, 2004- 1459, 2004- 1460, 2004- 1466 ( La. 4/ 12/ OS), 907 So. 2d 37, 51. Thus, a cause of action for indemnification for costs of defense does not arise, ar is premature, until the lawsuit is concluded and defense costs are paid. Suire, 907 So. 2d at 51; Melov v. Conoco, Inc., 504 So. 2d 833, 839 ( La. 1987). In Arnold 7/ 18/ 95), v. Airborne Frei h t Corporation, 94- 1728 ( La. App. ls` Cir. 667 So. 2d 1063, 1067, writ denied, 96- 0220 ( La. 3/ 15/ 96), 669 So. 2d 420, this court noted that while one defendant asserted a claim far indemnification of attorney' s fees against another defendant pursuant to an agreement between those parties, the defendant seeking indemnity had not actually incurred those costs. Rather, the defense costs had been incurred by the defendant' s insurer, which was not a party to the action. Thus, this court affirmed the trial court' s dismissal of the incidental action for indemnification, noting that because the defendant did not pay attorney' s fees, it had no claim for indemnification. Arnold, 667 So. 2d at 1067. Similarly, in the instant case, Dollar Tree' s evidence submitted in opposition to Kimco Realty' s motion for summary judgment as well as in support of its own cross motion for summary judgment established that 9 Kimco Realty had acknowledged in answers to interrogatories that it had not paid any fees ar expenses that had been incurred on its behalf in this suit. Rather, these defense costs had been incurred by Kimco Realty' s insurer, Federal Insurance Company (" Federal Insurance"), an entity that is not a party to this suit. Nonetheless, in a further effort to establish its claim for indemnification of defense costs, Kimco Realty submitted the affidavit of Glenn Brettschneider, who attested, in pertinent part, as follows: 1. That he is the Secretary of Kimco Insurance Company. 2. That defense costs, fees and other expenses associated with Kimco [ Realty]' s involvement related to this action are ultimately paid by Kimco Insurance Company who reimburses Federal Insurance Company who initially pays such costs. 3. That Kimco Insurance Company is a wholly owned subsidiary of Kimco Realty Corporation. Although noting in brief that there is no indication in the trial court' s oral reasons that the trial court considered these statements in granting the motion for summary judgment, Dollar Tree asserts that these statements by Brettschneider do not comport with the requirements of LSA- C. C. P. art. 967( A).5 In particular, Dollar Tree notes that in the affidavit, Brettschneider appears to argue as to the scope of the Federal Insurance policy, i.e., whether it requires Kimco Realty, or any other entity, to reimburse defense costs incurred by Federal Insurance on behalf of Kimco Realty. However, as noted by Dollar Tree, Kimco Realty did not attach a copy of the Federal Insurance policy evidencing its obligation, or the obligation of any other entity, to reimburse Federal Insurance for the defense costs incurred on Dollaz Tree raised the issue of whether the affidavit comported with the requirements of LSA- C. C.P. ar[. 967 in the trial court below. 10 behalf of Kimco Realty in this litzgation, and Bre ischneider does nat explain the basis far his conclusqons about KamGC Realty' s ( or Kimco' s Insurance Company' s) obligataons. Louisiana Code of Civi1 Prac dure arti le 967( A) provides that supporting affidavits shali l e nnacie on pez anal k.nowled; e oz t e affiant, shall set forth sueh facts a would l e admissible in evidence, arzd shall affirmatively show that the affiant is compete t to testify to the matters stated Additionally, therein. LSA- C. C. P. ax-t. 967(.A) requires that "[ s] worn or certified copies of all papers or parts thereof referred to in an affidavit sha11 be attached thereto and served therewith." In his affidavit, Brettschneider merely states that he is the secretary of Kimco Insurance Company and then purports to interpreti the Federal Insurance policy issued to Kimco Realty without attaching a copy of the policy or setting forth the basis for his personal knowledge of the term s and obligations of the policy or his competency to interpret any reirrzbursement provisions therein. Thus, the affidavit did not sati fy the requirements of LSA-GC.P. art. 967( A). Unifund CCR Partners 9I25/ 13), _ Companv, v. So. 2d _, _; Perkins, 2012- 1851, pp. 6- 7 ( La. Orte o v. Howard Truckin Inc., 345 So. 2d 1259, 1260- 1261 ( I Re ions Bank v. a: App. App. ls` Cir. and Construction ls` Cir. 1977); cf Louisiana Pipe & Steel Fabricators, LLC, k011- 0839 ( La. App. ls` Cir. 1 2/ 21/ I1), 80 So. 3d 1209, 1213. Furthermore, even if this affidavi± were of suffci nt evidentiary quality to establish that Kimco Insurance Company has some obligation to Federal Insurance to reimburse the defense coets incumed by Federal Insurance on behalf of Kimco Realty, we note that there is no suggestion in the affidavit that Kimco Insurance Company has actually reimbursed those costs. And, even if the recard demonstrated that Kimco Insurance Company 11 had in fact paid Kimco Realty' s deken e co ts, the assertions in Brettschneider' s affidaeit suggest thai Kimco Insurance Company is a separate legal entity from Kimcc Realt- , wheth r a subsidiary or not. See y Enter Bujol v. 1127, and v Services, Inc., 003- 0492 ( La. S/ 2/ 04), 9? 2 So. 2d 1113, t Horseshoe Entertains-ient v. Le nski, 40, 753 ( La. App 2na Cir. 3/ 8/ 06), 923 So, 2d 929, 934- 935, writ denied, 2006- 0792 ( La 6-"?% 929 06), So. 2d 1259 (noting that a corporation is a legal entity disrinct from its shareholders, and the same principle applies where one corporation wholly owns another.). Kimco Insuran.ce Gompany is noY a party to this suit; and Kimco Realty has offered nQ factuaY basis th t weuld allow it to assert any right that may belong to Kimc Ir surance Company for rezmbursement of thase defense costs. In sum, the payment of defense costs is an essential element of Kimco Realty' s indemnity claim. $ y demonstrating an absence of factual support for that essential e'_ ement, Dollar Tr e shifted the burden a f production to Kimco to produce evidence that demonstrates the existence of a genuine issue far triaL Kimco R airy has ac owied eb. that it h s not in fact reimbursed Federal Insurance for defense costs incurred un its behalf, and it has not offered any evidexice that it has reimburseu any- other entity for these def nse costs, thereby failing to estab: isb that it has actually incnrred those costs. Arnold, 667 Sa 2d at 1067. Nor nas Kimco Realty presented any evidence in support of its mot? for summary judgment to demonstrate its on right to assert an indemnity claim for defense costs on behalf of any uther entity that is not a party to this suit. Considering the foregoing, we conclude that, in failing ta establish that it has actually incurred any defense costs herein, Kirnco Realty simply has not established by credible evidence its entitlement to judg}nent in its favor for reimbursement uf d2fense costs 12 pursuant to the defense and indemnity provision of the Lease Agreement. For these reasons, the summary judgment in its favor must be reversed. Because we have found merit to the first and second assignments of error, we pretermit consideration of the rema ning assignments of error. CONCLUSION For the above and foregoing reasons, the trial court' s April 17, 2013 judgment, denying Dollar Tree' s motion for summary judgment and granting Kimco Realty' s mot:on for summary judgment, is reversed. Judgment is hereby rendered, granting Dollar Tree' s motion for summary judgment and dismissing with prejudice Kimco Realty' s cross claim against Dollar Tree for defense and indemnification.6 Costs of this appeal are assessed against Kimco Realty Corporation. REVERSED AND RENDEREA 6While Kimco Realty' s evidence and argument may have raised a question as to whether some othex entity not a party to this suit may be entitled to reimbursement of defense costs incuned on behalf of Kimco Realty, Kimco Realty has offered no evidence to support its entitlement to such relief, or even to raise a question of fact as to such entitlement. Accordingly, we dismiss Kimco Realty' s cross claim against Dollar Tree with prejudice. 13

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