Charles L. Venable v. Austin Dejean

• Court: Louisiana Court of Appeal
• Decided: December 11, 2013
• Docket: CA-0013-0765
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-765

CHARLES L. VENABLE, ET AL.

VERSUS

AUSTIN DEJEAN, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 2010-11074 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.

REVERSED AND REMANDED.

Dennis Joseph Phayer Mindy M. Nunez Burglass & Tankersley 5213 Airline Drive Metairie, LA 70001-5602 (504) 836-2220 COUNSEL FOR DEFENDANTS/APPELLEES: Rayne Autorepair, Inc. Michael R. Stanford John M. Jefcoat Britney L. Hebert Galloway Jefcoat, L.L.P. P. O. Box 61550 Lafayette, LA 70596-1550 (337) 984-8020 COUNSEL FOR PLAINTIFF/APPELLANT: Charles L. Venable PICKETT, Judge.

Charles Venable appeals the trial court’s grant of summary judgment

dismissing his claims against the owner of a sign that allegedly contributed to the

accident in which he was injured. Finding the owner of the sign did not carry its

burden of proof, we reverse the judgment of the trial court and remand this matter

for further proceedings.

FACTS

Charles Louis Venable (Louis), Chad Venable, and Jennifer Milatovich filed

suit against Austin Dejean, Jr., Rayne Auto Repair, Inc., Michael Stanford, and

their respective insurers, seeking damages they claim to have suffered when trucks

driven by Mr. Dejean and Mr. Chad Venable collided on September 15, 2009.

Mr. Dejean owns a business that is located on East Texas Street in Rayne. His

business is next door to Rayne Auto Repair; Mr. Stanford is the owner and

operator of Rayne Auto Repair. The plaintiffs alleged that the collision occurred

when Mr. Dejean exited his driveway and hit Mr. Venable’s truck. They further

alleged that a sign owned by Rayne Auto Repair and placed near the street blocked

Mr. Dejean’s view of East Texas Street and Mr. Venable’s truck as it travelled

toward Mr. Dejean. The plaintiffs contend, therefore, that the sign contributed to

the collision and that Rayne Auto Repair and its insurer are liable to them for

damages.

Charles and Chad Venable settled their claims against Mr. Austin and his

insurer and dismissed their claims against them, reserving their rights against

Rayne Auto Repair and the remaining defendants. Chad is no longer a plaintiff in

this lawsuit. Rayne Auto Repair and Michael Stanford filed a motion for summary

judgment, asserting they were not at fault in causing the collision between

Mr. Dejean and Mr. Venable. After a hearing on the motion, the trial court

concluded that Mr. Dejean did not state that Rayne Auto Repair’s sign blocked his

view of Mr. Venable’s truck before the collision occurred and granted summary

judgment in favor of Rayne Auto Repair and Mr. Stanford. When denying the

motion, the trial court stated, “Mr. Dejean denie[d] that he told the police officer

that the signs, in fact, impaired or affected his abilities [or] his view.”

ASSIGNMENT OF ERROR

The trial court erred in granting summary judgment in favor of the defendant, as numerous general issues of material fact exist and the defendant is not entitled to a judgment as a matter of law.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same

criteria applied by trial courts to determine whether summary judgment is

appropriate. La. Safety Ass’n of Timbermen-Self Insurers Fund v. La. Ins. Guar.

Ass’n, 09-23 (La. 6/26/09), 17 So.3d 350. A motion for summary judgment will be

granted “if the pleadings, depositions, answers to interrogatories, and admissions,

together with the affidavits, if any, show that there is no genuine issue as to

material fact, and that mover is entitled to judgment as a matter of law.” La.Code

Civ.P. art. 966(B)(2). Summary judgment is favored and shall be construed “to

secure the just, speedy, and inexpensive determination of every action.” La.Code

Civ.P. art. 966(A)(2).

On a motion for summary judgment, the initial burden of proof is on the

mover to show that no genuine issue of material fact exists. La.Code Civ.P. art.

966(C)(2). If the movant will not bear the burden of proof at trial, he need not

2 “negate all essential elements of the adverse party’s claim”; however, he must

show “there is an absence of factual support for one or more elements essential to

the adverse party’s claim.” Id. If the movant meets this initial burden of proof, the

burden shifts to the adverse party “to produce factual support sufficient to establish

that he will be able to satisfy his evidentiary burden at trial.” Id.

“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.” Hines

v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (citation omitted). “A

genuine issue is one as to which reasonable persons could disagree; if reasonable

persons could reach only one conclusion, there is no need for trial on that issue and

summary judgment is appropriate.” Id. at 765-66.

Though 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, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050. When considering a

motion for summary judgment, the trial court cannot “consider the merits, make

credibility determinations, evaluate testimony or weigh evidence.” Prop. Ins.

Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting

Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11

(La. 4/12/05), 907 So.2d. 37, 48). It is for “the trier of fact who has the

opportunity to hear all the evidence and to observe the witnesses” to make

credibility determinations. Belgard v. Am. Freightways, Inc., 99-1067, p. 5

(La.App. 3 Cir. 12/29/99), 755 So.2d 982, 986, writ denied, 00-293 (La. 3/31/00),

756 So.2d 1147.

3 DISCUSSION

The trial court granted summary judgment because Mr. Dejean denied that

he told the police officer who investigated the accident that a sign or signs owned

by Rayne Auto Repair impaired or affected his ability to see Mr. Venable’s truck

and that he did not see Mr. Venable’s truck because of the sign or signs.

Notwithstanding this denial, when asked, “Do you believe that the sign of Rayne

Auto Repair obstructed your view,” Mr. Dejean testified, “I probably made the

statement. . . . I most probably told them it was.” Mr. Dejean also plainly stated in

his deposition, “I made the statement about the sign.”

Throughout his deposition, Mr. Dejean vacillated between (1) denying that

he stated the signs blocked his view of Mr. Venable’s truck, (2) admitting that he

made the statement, and (3) insinuating that Mr. Venable, not him, told the police

officer that he stated the sign blocked his view of Mr. Venable’s truck. Mr. Dejean

also testified that he could see Mr. Venable’s truck from the time Mr. Venable

turned onto East Texas Street until their vehicles collided and that Mr. Venable ran

into his truck on purpose.

To be entitled to summary judgment, Rayne Auto Repair and Mr. Stanford

had to prove that no genuine issue of material fact exists as to whether a sign

owned by them contributed to the collision between Mr. Dejean and Mr. Venable.

Mr. Dejean’s testimony as to whether the sign blocked his view of Mr. Venable’s

truck is equivocal and requires a credibility determination that can only be made by

the trier of fact after a trial on the merits. Prop. Ins. Ass’n of La., 31 So.3d 1012.

Neither Mr. Dejean’s testimony nor any other evidence establishes that there

is an absence of factual support for Mr. Venable’s claim that a sign owned by

Rayne Auto Repair and/or Mr. Stanford caused or contributed to Mr. Dejean

4 hitting his vehicle. Rayne Auto Repair and Mr. Stanford have not proven they are

entitled to summary, and the judgment of the trial court must be reversed.

DISPOSITION

The judgment of the trial court is reversed, and this matter is remanded to

the trial court for further proceedings. All costs are assessed to Rayne Auto

Repair, Inc. and Michael Stanford.