Christopher J. Fraino, Sr. v. Malachi S. Hull and Define Your Image, LLC

• Court: Louisiana Court of Appeal
• Decided: December 29, 2022
• Docket: 2022-CA-0361
• Status: Published

Opinion

CHRISTOPHER J. FRAINO, * NO. 2022-CA-0361 SR. * VERSUS COURT OF APPEAL * MALACHI S. HULL AND FOURTH CIRCUIT DEFINE YOUR IMAGE, LLC * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03669, DIVISION “J” Honorable D. Nicole Sheppard, ****** Judge Sandra Cabrina Jenkins ******

(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)

Robert G. Harvey, Sr. LAW OFFICE OF ROBERT G. HARVEY, SR., APLC 600 North Carrollton Avenue New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE

Jonathan D. Lewis Daniel E. Davillier Charles Ferrier Zimmer, II DAVILLER LAW GROUP, LLC 935 Gravier Street, Suite 1702 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED DECEMBER 29, 2022 SCJ DLD RDJ Appellants, Malachi S. Hull and Design Your Image, LLC (collectively “Mr.

Hull”) appeal the trial court’s March 14, 2022 judgment, which granted Appellee,

Christopher J. Fraino, Sr.’s motion for summary judgment, and dismissed the

appellants’ reconventional demand with prejudice. For the reasons to follow, we

reverse the trial court’s judgment and remand this matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In March of 2017, Mr. Hull and Mr. Fraino allegedly made an oral

agreement to jointly pursue a contract with the City of New Orleans (the “City”)

for junk vehicle evaluation and disposal services. Mid-City, Mr. Fraino’s company

would earn sixty-five percent of the revenue and Mr. Hull would earn thirty-five

percent. To obtain a contract with the City a Disadvantaged Business Enterprise

(“DBE”) participant was required. The City DBE compliance form provided that

Mr. Fraino was the bidder and listed Mr. Hull as a DBE participant with a thirty-

five percent DBE utilization.

On July 13, 2017, Mr. Hull attended the Request for Proposal (“RFP”) bid

presentation on behalf of Mr. Fraino and Mid City. On September 28, 2016, Mid

1 City was awarded the contract. On October 31, 2017, Mid City invoiced the City

$51,083.96. Mr. Hull did not receive compensation for the performance on the

contract.

On April 13, 2018, Mr. Fraino filed a petition for declaratory judgment

against Mr. Hull, alleging that Mr. Fraino and Mr. Hull never had an oral

partnership agreement or any other contract together. Thereafter, on May 23, 2018,

Mr. Hull filed his answer and reconventional demand. On January 7, 2022, Mr.

Fraino filed a motion for summary judgment asserting a lack of genuine issue of

material fact as to the formation of an oral joint partnership agreement between the

parties. Mr. Hull filed opposition to the motion, asserting that the parties agreed to

jointly pursue a contract with the City for junk vehicle evaluation and disposal

services. Mr. Fraino filed a subsequent motion to strike Mr. Hull’s affidavit and

exhibits. Mr. Hull opposed the motion to strike.

The trial court held a hearing on the motion for summary judgment and

motion to strike on February 16, 2022. During the hearing, the trial court sustained

Mr. Fraino’s objection to Mr. Hull’s affidavit and exhibits. On February 25, 2022,

the trial court signed a judgment granting Mr. Fraino’s motion for summary

judgment. On March 4, 2022, Mr. Hull filed a motion for new trial. On the same

date, the trial court denied the motion for new trial. Thereafter, the trial court

issued an amended judgment on March 14, 2022 to include language that Mr.

Hull’s reconventional demand was dismissed with prejudice. On March 22, 2022,

Mr. Hull filed a motion for devolutive appeal. This appeal timely follows.

DISCUSSION

2 Mr. Hull argues that the trial court erred in granting the motion to strike and

motion for summary judgment in favor of Mr. Fraino. Mr. Hull asserts two

assignments of error:

1. The trial court erred as a matter of law by striking as hearsay the entirety of admissible affidavit testimony and authenticated documentation submitted by Mr. Hull in support of his opposition to the motion for summary judgment.

2. The trial court erred by weighing the evidence and finding Mr. Hull’s evidence insufficient to convince the court that there was an agreement to share profits.

We begin our discussion by addressing the motion to strike.

Motion to Strike

Mr. Hull argues that his affidavit and attached exhibits were admissible and

sufficient pursuant to La. C.C.P. arts. 966(A)(4) and 967. Mr. Hull further argues

that his affidavit testimony regards his personal experiences in forming and

performing the contract between him and Mr. Fraino.

Motions to strike are governed by La. C.C.P. art. 964, which states, “[t]he

court on motion of a party or on its own motion may at any time and after a

hearing order stricken from any pleading any insufficient demand or defense or

any redundant, immaterial, impertinent, or scandalous matter.” “A motion to strike

is a means of cleaning up the pleadings, not a means of eliminating causes of

actions or substantive allegations.” Tran v. Collins, 2020-0246, p. 7 (La. App. 4

Cir. 8/20/21), 326 So.3d 1274, 1280 (quoting Hazelwood Farm, Inc. v. Liberty Oil

& Gas Corp., 2001-0345, pp. 7-8 (La. App. 3 Cir. 6/20/01), 790 So.2d 93, 98).

La. C.C.P. art. 966(A)(4) provides in pertinent part that “[t]he only

documents that may be filed in support of or in opposition to the motion are

pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified

3 medical records, written stipulations, and admissions.” La. C.C.P. art.

967(A)provides that affidavits introduced in support of a motion for summary

judgment “shall be made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein.” La. C.E. art. 801(D) provides

that “hearsay” is “a statement, other than one made by the declarant while

testifying at the present trial or hearing, offered in evidence to prove the truth of

the matter asserted.”

A trial court is given vast discretion in its ruling on the admissibility of

evidence, including whether or not witness testimony is relevant and admissible.

In FIE, LLC v. New Jax Condo Ass’n, Inc., 2016-0843, p. 31 (La. App. 4

Cir. 2/21/18), 241 So.3d 372, 395, writ denied, 2018-449 (La. 5/25/18), 243 So.3d

544, and writ denied, 2018-446 (La. 5/25/18); 243 So.3d 545 (citations omitted),

this Court stated:

The trial court is vested with great discretion concerning the admissibility of evidence, and the trial court's decision to admit or exclude evidence will not be reversed on appeal in the absence of a clear abuse of discretion.

Thus, “[w]e will not overturn a trial court’s ruling on the admissibility of evidence

unless that ruling is clearly wrong or we find that the trial court has committed an

abuse of discretion in so ruling. Wright v. Gotte, 2008-174, p. 3 (La. App. 3 Cir.

12/10/08), 1 So.3d 700, 703, writ denied, 2009-0060 (La. 3/6/09), 3 So.3d 489.

A review of the February 16, 2022 hearing transcript reveals that the trial

court did not entertain Mr. Fraino’s motion to strike based on the acknowledgment

that the motion to strike was not properly before the court. However, we note that

4 the trial court sustained Mr. Fraino’s objection to Mr. Hull’s affidavit as hearsay.1

A review of the affidavit reveals that it is being presented by Mr. Hull to prove that

1) there was a joint effort between Mr. Hull and Mr. Fraino to procure and perform

a contract with the City, 2) Mr. Hull prepared and signed DBE compliance

documents, 3) the City emailed Mr. Fraino and Mr. Hull on various occasions, and

4) the City paid Mr. Fraino and Mid City for the services and Mr. Hull did not

receive his share of the revenue. Accordingly, we find that the trial court abused its

discretion in sustaining the objection of the affidavit in its entirety, as an affidavit

may be filed in opposition to a motion for summary judgment and the statements

contained therein are not hearsay because they are based on Mr. Hull’s personal

knowledge.

Motion for Summary Judgment

An appellate court reviews summary judgments under the de novo standard

of review, using the same standard applied by the trial court in deciding the motion

for summary judgment; as a result, we are not required to analyze the facts and

evidence with deference to the judgment of the trial court or its reasons for

judgment. Precept Credit Opportunities Fund, L.P. v. Elmore, 2021-0502, p. 3 (La.

App. 4 Cir. 4/20/22), 338 So.3d 87, 89-90 (citing Smith v. State, 2018-0197, p. 3

(La. App. 4 Cir. 1/9/19), 262 So.3d 977, 980). Therefore, “[a]fter an opportunity

for adequate discovery, 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.” Precept Credit Opportunities Fund, L.P., 2021-0502, p. 3, 338 So.3d at 90

1 La. C.E. art. 801(C) provides that “‘hearsay’ is a statement, other than one made by the

declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.”

5 (citing La. C.C.P. art. 966(A)(3)). “In determining whether an issue is genuine,

courts cannot consider the merits, make credibility determinations, evaluate

testimony, or weigh evidence.” Lewis v. Jazz Casino Co., L.L.C., 2017-0935, p. 6

(La. App. 4 Cir. 4/26/18), 245 So.3d 68, 72 (citing Fiveash v. Pat O’brien’s Bar,

Inc., 2015-1230, p. 7 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 917).

“The only documents that may be filed in support or in opposition to the

motion are pleadings, memoranda, affidavits, depositions, answers to

interrogatories, certified medical records, written stipulations, and admissions.” La.

C.C.P. art. 966(A)(4). “In meeting the burden of proof, unsworn or unverified

documents, such as letters or reports are not self-proving and will not be

considered; attaching such documents to a motion for summary judgment does not

transform them into competent summary judgment evidence.” May v. Carson,

2021-1156, p. 8 (La. App. 1 Cir. 8/2/22), 348 So.3d 88, 93, reh’g denied (Aug. 16,

2022), writ denied, 2022-01394 (La. 11/22/22).

“The burden of proof rests with the moving party and all doubts should be

resolved in the non-moving party's favor.” Hayes v. Sheraton Operating Corp.,

2014-0675, p. 3 (La. App. 4 Cir. 12/10/14); 156 So.3d 1193, 1196 (citing Gailey v.

Barnett, 2012–0830, p. 4 (La. App. 4 Cir. 12/5/12), 106 So.3d 625, 627–28.

Therefore, any doubt regarding a material issue of fact “must be resolved against

granting the motion and in favor of a trial on the merits.” FMC Enterprises , L.L.C.

v. Prytania-St. Mary Condominiums Ass’n, Inc., 2012-1634, pp. 6-7 (La. App. 4

Cir. 5/15/13), 117 So.3d 217, 222-223 (citing Windham v. Murray, 2006-1275, p.3

(La. App. 4 Cir. 5/30/07), 960 So.2d 328, 331).

In the instant matter, Mr. Fraino’s motion for summary judgment asserts that

there is no genuine issue of material fact that Mr. Hull never had a contract with

6 him to be the DBE contractor under Mid City’s towing contract with the City. In

order to carry his burden of proof on the motion for summary judgment, Mr.

Fraino must point out the absence of factual support for one or more of the

elements essential to Mr. Hull’s claim. See La. C.C.P. art. 966(D)(1).

Our Supreme Court has set forth three criteria for establishing an oral

commercial partnership agreement:

1) the parties must have mutually consented to form a partnership and to participate in the profits which may accrue from property, skill or industry, furnished to the business in determined proportions by them; 2) all parties must share in the losses as well as the profits of the venture; and 3) the property or stock of the enterprise must form a community of goods in which each party has a proprietary interest.

Sacco v. Paxton, 2012-1595, p. 6 (La. App. 4 Cir. 1/30/14), 133 So.3d 213, 217,

writ denied, 2014-0444 (La. 4/17/14), 138 So.3d 628 (citing Darden v. Cox, 240

La. 310, 123 So.2d 68, 71 (1960)).

In support of his motion for summary judgment, Mr. Fraino submitted his

affidavit and deposition; Mr. Hull’s deposition; July 1, 2016 letter from State and

Local Disadvantage Business Enterprise Program; Department of Transportation

and Development (“DOTD”) Letter to Define Your Image; Professional Services

Agreement between the City of New Orleans and Mid City; and the DBE

Responsiveness forms. In the affidavit, Mr. Fraino attests that he is the sole

member of Mid City, Mr. Hull offered to help him with the bid and he forwarded

emails to Mr. Hull regarding the contract, and he put Mr. Hull on the DBE for the

bid merely to obtain the contract. The DOTD letter reflects that Mr. Hull’s firm is

certified as a DBE for administrative management and general management

consulting services. Mr. Fraino also relied on the deposition of Mr. Hull to support

his contention that Mr. Hull was not qualified to serve as a DBE contractor under

7 the contract with the City. Mr. Hull’s deposition testimony provides that he did not

have any tow trucks and his job consisted of administrative and managerial role.

In opposition to the motion for summary judgment, Mr. Hull argued that

there is a genuine issue of material fact as to the formation of the joint venture. In

his affidavit, Mr. Hull attested that in March of 2017, he and Mr. Fraino agreed to

enter into a partnership to pursue a contract with the City. He further attested that

he developed invoices and worked on managerial aspects of the contract.

We note that in his petition for declaratory judgment, Mr. Fraino conceded

that Mr. Hull made a presentation on his and Mid City’s behalf at a City committee

which was considering the bids on the RFP. As previously mentioned, Mr. Fraino

attested that he added Mr. Hull has a DBE to obtain the contract. While Mr. Fraino

argued that there was no joint venture because Mr. Hull did not share in the losses

of the venture, “[o]ur courts have recognized that an agreement to share losses may

be implied from an agreement to share profits.” Sacco, 2012-1595, p. 12, 133

So.3d at 221 (citing Riddle v. Simmons, 40,000, p. 31 (La. App. 2 Cir. 2/16/06),

922 So.2d 1267, 1287).

From our de novo review, we find that this matter involves factual issues

which center on whether a joint venture existed between Mr. Fraino and Mr. Hull.

As such, we find that summary judgment was inappropriate, as genuine issues of

material fact exist with regard to the existence of an oral agreement to jointly

pursue a contract with the City and whether Mr. Hull was gratuitously assisting

Mr. Fraino with the contract. A resolution of these issues require the trial court to

weigh the conflicting factual evidence and to make credibility determinations. See

Dhaliwal v. Dhaliwal, 48,034, p. 18 (La. App. 2 Cir. 9/11/13), 124 So.3d 470, 481.

CONCLUSION

8 For the foregoing reasons, we find that the trial court abused its discretion in

sustaining Mr. Fraino’s objection to Mr. Hull’s affidavit, and we reverse the trial

court’s March 14, 2022 judgment granting Mr. Fraino’s motion for summary

judgment, and we remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED