STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-838
BRADLEY BROUSSARD
VERSUS
GULFPORT ENERGY CORPORATION, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2015-2233 HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
REVERSED.
Randall Kurt Theunissen S. Brian Perry Allen & Gooch Post Office Box 81129 Lafayette, Louisiana 70598-1129 (337) 291-1000 Counsel for Defendants/Appellees: Wet Tech Lighting, Inc. Wet Tech Energy, Inc. Robert A. Mahtook, Jr. Mahtook & LaFleur, LLC Post Office Box 3089 Lafayette, Louisiana 70502-3089 (337) 266-2189 Counsel for Defendant/Appellee: AFX Petrologix, LLC
Leo Raymond McAloon, III Gieger, LaBorde & Laperouse, LLC One Shell Square 701 Poydras Street, Suite 4800 New Orleans, Louisiana 70139 (504) 561-0400 Counsel for Defendant/Appellee: Shamrock Management, LLC
Marc D. Moroux Juneau David, APLC Post Office Drawer 51268 Lafayette, Louisiana 70505-1268 (337) 261-1408 Counsel for Defendant/Appellee: Gulfport Energy Corporation
Thomas M. Flanagan Sean Brady Andy Dupre Anders F. Holmgren Flanagan Partners LLP 201 St. Charles Avenue, Suite 2405 New Orleans, Louisiana 70170 (504) 569-0235 Counsel for Plaintiff/Appellant: Bradley Broussard
J. Kyle Findley Kala Sellers Adam Lewis Arnold & Itkin, LLP 6009 Memorial Drive Houston, Texas 77007 (713) 222-3800 Counsel for Plaintiff/Appellant: Bradley Broussard
F. Douglas Ortego LeBas Law Offices 201 Rue Iberville, Suite 100 Lafayette, Louisiana 70508 (337) 236-5500 Counsel for Intervenor: American Interstate Insurance Company KEATY, Judge.
Plaintiff/Appellant, Bradley Broussard, appeals the trial court’s grant of
summary judgment in favor of Defendant/Appellee, Wet Tech Lighting, Inc. For
the following reasons, the trial court’s judgment is reversed.
FACTS AND PROCEDURAL HISTORY
This personal injury matter stems from injuries sustained by Broussard on
January 21, 2015, while working in the course and scope of his employment with
AFS Petrologix, LLC, on platform 114 in the East Hackberry Field in Calcasieu
Lake, State Lease 50. Broussard was inspecting a navigational light on top of a pole
when it broke, causing him to fall into the water below and sustain injuries. As a
result, Broussard filed an Original Petition for Damages on May 6, 2015, against
Gulfport Energy Corporation as the owner and/or operator of the platform based
upon negligence and premises liability. Broussard’s workers’ compensation insurer,
American Interstate Insurance Company, filed a Petition of Intervention. On
April 26, 2016, Broussard filed his First Amended Petition for Damages, naming
Wet Tech Lighting, Inc., Wet Tech Energy, Inc., and Shamrock Management, L.L.C.,
as additional Defendants. In his amended petition, Broussard alleged that Wet Tech
Lighting, Wet Tech Energy, and Shamrock were negligent by failing to properly
inspect and maintain the navigational light and pole.
On April 11, 2018, Wet Tech Lighting filed a motion for summary judgment,
alleging that it owed no duty to Broussard because the contract governing the work
at issue was executed between Gulfport and Wet Tech Energy, a separate and
different entity from Wet Tech Lighting. Broussard filed an opposition
memorandum and, alternatively, a motion to continue the summary judgment
hearing. Following a hearing on May 14, 2018, the trial court denied Broussard’s
motion to continue and granted Wet Tech Lighting’s motion for summary judgment. The trial court’s written judgment was signed on May 24, 2018, which Broussard
now appeals.
On appeal, Broussard asserts the following assignments of error:
A. Given the absence of critical discovery, the district court abused its discretion in refusing to continue the summary judgment hearing.
B. The district court erred in refusing to continue the summary judgment hearing where the plaintiff received less than the 30-day notice required by article 966(C)(1)(b) of the Code of Civil Procedure.
STANDARD OF REVIEW
The standard of review utilized by an appellate court when reviewing a trial
court’s grant of a motion for summary judgment is de novo. Duncan v. U.S.A.A. Ins.
Co., 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard, the appellate court
uses the same criteria as the trial court in determining if summary judgment is
appropriate pursuant to La.Code Civ.P. art. 966. Id. The criteria enunciated in
La.Code Civ.P. art. 966(A)(3) provides that “a motion for summary judgment shall
be granted if the motion, memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover is entitled to judgment as
a matter of law.” “A fact is ‘material’ when its existence or nonexistence may be
essential to [a] plaintiff’s cause of action under the applicable theory of recovery.”
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d
730, 751. Additionally, a fact is material if it potentially insures or precludes
recovery, affects a litigant’s ultimate success, or determines the outcome of the legal
dispute. Id.
Louisiana Code of Civil Procedure Article 966(D)(1) explains the mover’s
burden of proof on summary judgments as follows:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before 2 the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
DISCUSSION
In his second assignment of error, Broussard contends that the trial court erred
in refusing to continue the summary judgment hearing because he received less than
thirty-days’ notice in violation of La.Code Civ.P. art. 966(C)(1)(b). According to
Broussard, this article ensures that parties are given at least thirty-days’ notice of the
setting of a hearing on a motion for summary judgment. He asserts that this
mandatory pre-hearing notice was not afforded to him.
In opposition, Wet Tech Lighting contends that the article at issue states that
the time limits must be followed unless otherwise agreed to by all of the parties and
the court. It points to Broussard’s handling of the case, including the filing of an
opposition addressing the merits and appearing at the hearing to argue his position.
According to Wet Tech Lighting, Broussard’s foregoing actions reveal that no
prejudice occurred and that he waived any objection he may have had regarding the
timing of the hearing.
Notice of a hearing on a motion for summary judgment is discussed in
La.Code Civ.P. art. 966, as follows:
C. (1) Unless otherwise agreed to by all of the parties and the court: ....
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.
3 On review, the record reveals that April 16, 2018 is when Broussard’s counsel
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-838
BRADLEY BROUSSARD
VERSUS
GULFPORT ENERGY CORPORATION, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2015-2233 HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
REVERSED.
Randall Kurt Theunissen S. Brian Perry Allen & Gooch Post Office Box 81129 Lafayette, Louisiana 70598-1129 (337) 291-1000 Counsel for Defendants/Appellees: Wet Tech Lighting, Inc. Wet Tech Energy, Inc. Robert A. Mahtook, Jr. Mahtook & LaFleur, LLC Post Office Box 3089 Lafayette, Louisiana 70502-3089 (337) 266-2189 Counsel for Defendant/Appellee: AFX Petrologix, LLC
Leo Raymond McAloon, III Gieger, LaBorde & Laperouse, LLC One Shell Square 701 Poydras Street, Suite 4800 New Orleans, Louisiana 70139 (504) 561-0400 Counsel for Defendant/Appellee: Shamrock Management, LLC
Marc D. Moroux Juneau David, APLC Post Office Drawer 51268 Lafayette, Louisiana 70505-1268 (337) 261-1408 Counsel for Defendant/Appellee: Gulfport Energy Corporation
Thomas M. Flanagan Sean Brady Andy Dupre Anders F. Holmgren Flanagan Partners LLP 201 St. Charles Avenue, Suite 2405 New Orleans, Louisiana 70170 (504) 569-0235 Counsel for Plaintiff/Appellant: Bradley Broussard
J. Kyle Findley Kala Sellers Adam Lewis Arnold & Itkin, LLP 6009 Memorial Drive Houston, Texas 77007 (713) 222-3800 Counsel for Plaintiff/Appellant: Bradley Broussard
F. Douglas Ortego LeBas Law Offices 201 Rue Iberville, Suite 100 Lafayette, Louisiana 70508 (337) 236-5500 Counsel for Intervenor: American Interstate Insurance Company KEATY, Judge.
Plaintiff/Appellant, Bradley Broussard, appeals the trial court’s grant of
summary judgment in favor of Defendant/Appellee, Wet Tech Lighting, Inc. For
the following reasons, the trial court’s judgment is reversed.
FACTS AND PROCEDURAL HISTORY
This personal injury matter stems from injuries sustained by Broussard on
January 21, 2015, while working in the course and scope of his employment with
AFS Petrologix, LLC, on platform 114 in the East Hackberry Field in Calcasieu
Lake, State Lease 50. Broussard was inspecting a navigational light on top of a pole
when it broke, causing him to fall into the water below and sustain injuries. As a
result, Broussard filed an Original Petition for Damages on May 6, 2015, against
Gulfport Energy Corporation as the owner and/or operator of the platform based
upon negligence and premises liability. Broussard’s workers’ compensation insurer,
American Interstate Insurance Company, filed a Petition of Intervention. On
April 26, 2016, Broussard filed his First Amended Petition for Damages, naming
Wet Tech Lighting, Inc., Wet Tech Energy, Inc., and Shamrock Management, L.L.C.,
as additional Defendants. In his amended petition, Broussard alleged that Wet Tech
Lighting, Wet Tech Energy, and Shamrock were negligent by failing to properly
inspect and maintain the navigational light and pole.
On April 11, 2018, Wet Tech Lighting filed a motion for summary judgment,
alleging that it owed no duty to Broussard because the contract governing the work
at issue was executed between Gulfport and Wet Tech Energy, a separate and
different entity from Wet Tech Lighting. Broussard filed an opposition
memorandum and, alternatively, a motion to continue the summary judgment
hearing. Following a hearing on May 14, 2018, the trial court denied Broussard’s
motion to continue and granted Wet Tech Lighting’s motion for summary judgment. The trial court’s written judgment was signed on May 24, 2018, which Broussard
now appeals.
On appeal, Broussard asserts the following assignments of error:
A. Given the absence of critical discovery, the district court abused its discretion in refusing to continue the summary judgment hearing.
B. The district court erred in refusing to continue the summary judgment hearing where the plaintiff received less than the 30-day notice required by article 966(C)(1)(b) of the Code of Civil Procedure.
STANDARD OF REVIEW
The standard of review utilized by an appellate court when reviewing a trial
court’s grant of a motion for summary judgment is de novo. Duncan v. U.S.A.A. Ins.
Co., 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard, the appellate court
uses the same criteria as the trial court in determining if summary judgment is
appropriate pursuant to La.Code Civ.P. art. 966. Id. The criteria enunciated in
La.Code Civ.P. art. 966(A)(3) provides that “a motion for summary judgment shall
be granted if the motion, memorandum, and supporting documents show that there
is no genuine issue as to material fact and that the mover is entitled to judgment as
a matter of law.” “A fact is ‘material’ when its existence or nonexistence may be
essential to [a] plaintiff’s cause of action under the applicable theory of recovery.”
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d
730, 751. Additionally, a fact is material if it potentially insures or precludes
recovery, affects a litigant’s ultimate success, or determines the outcome of the legal
dispute. Id.
Louisiana Code of Civil Procedure Article 966(D)(1) explains the mover’s
burden of proof on summary judgments as follows:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before 2 the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to 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. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
DISCUSSION
In his second assignment of error, Broussard contends that the trial court erred
in refusing to continue the summary judgment hearing because he received less than
thirty-days’ notice in violation of La.Code Civ.P. art. 966(C)(1)(b). According to
Broussard, this article ensures that parties are given at least thirty-days’ notice of the
setting of a hearing on a motion for summary judgment. He asserts that this
mandatory pre-hearing notice was not afforded to him.
In opposition, Wet Tech Lighting contends that the article at issue states that
the time limits must be followed unless otherwise agreed to by all of the parties and
the court. It points to Broussard’s handling of the case, including the filing of an
opposition addressing the merits and appearing at the hearing to argue his position.
According to Wet Tech Lighting, Broussard’s foregoing actions reveal that no
prejudice occurred and that he waived any objection he may have had regarding the
timing of the hearing.
Notice of a hearing on a motion for summary judgment is discussed in
La.Code Civ.P. art. 966, as follows:
C. (1) Unless otherwise agreed to by all of the parties and the court: ....
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.
3 On review, the record reveals that April 16, 2018 is when Broussard’s counsel
received notice of the hearing scheduled for May 14, 2018. Thus, receipt of the
notice was less than thirty days in violation of La.Code Civ.P. art. 966(C)(1)(b). At
the hearing and in its memoranda filed in the trial court proceeding, Wet Tech
Lighting argued that Broussard waived his right to the thirty-day notice requirement
because he filed an opposition memorandum. Wet Tech Lighting also pointed to the
language in La.Code Civ.P. art. 966(C)(1) wherein an exception to the thirty-day
notice requirement exists when otherwise “agreed to by all of the parties and the
court[.]”
In this case, the record shows that Broussard never agreed to a waiver of the
thirty-day notice requirement. Rather, in his opposition memorandum, he objected
and asserted that the hearing “fail[ed] to comply with the required notice under Art.
966(C)(1)(b)” and that he “was not provided the minimum amount of notice, 30 days,
as required.” Broussard argued that the “current hearing should be continued.” At
the hearing on the motion for summary judgment, Broussard advised the trial court
that he sought a continuance because of Wet Tech Lighting’s failure to provide the
requisite thirty-days’ notice.
We recognize that La.Code Civ.P. art. 966(C)(1)(b) requires that notice “shall”
be provided thirty days prior to the hearing. In Lewis v. Old Republic Insurance Co.,
17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, this court explained the meaning of
“shall” under La.Code Civ.P. art. 966(B), the provision governing the procedure for
filing, opposing, and replying to a motion for summary judgment. This court in
Lewis, 226 So.3d at 559, held:
As amended, Article 966(B) allows a trial court to extend the deadline with the agreement of all parties. This condition clearly was not fulfilled; Relator objected to the late filing of the opposition. The trial court, therefore, had no discretion to allow this late filing. The refusal
4 of the trial court to entertain Respondents’ late filings was mandated by La.Code Civ.P. art. 966.
Similar to Lewis, there was no agreement between Broussard and Wet Tech
Lighting to change the thirty-day notice requirement provided in La.Code Civ.P. art.
966(C)(1)(b). This is evident based upon Broussard’s repeated objections. The trial
court, therefore, had no discretion to allow the summary judgment hearing to occur
on May 14, 2018. Accordingly, this assignment of error has merit, and the summary
judgment is reversed. In light of our holding, we decline to address Broussard’s first
assignment of error.
DECREE
For the above reasons, the trial court’s judgment granting the motion for
summary judgment in favor of Defendant/Appellee, Wet Tech Lighting, Inc., is
reversed. All costs associated with this appeal are assessed to Defendant/Appellee,
Wet Tech Lighting, Inc.