De Rome A. Seals v. Franklin Avenue Baptist Church of New Orleans, La

• Court: Louisiana Court of Appeal
• Decided: November 20, 2019
• Docket: 2019-CA-0123
• Status: Published

Opinion

DE ROME A. SEALS * NO. 2019-CA-0123

VERSUS * COURT OF APPEAL FRANKLIN AVENUE BAPTIST * CHURCH OF NEW ORLEANS, FOURTH CIRCUIT LA * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-11336, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Terri F. Love ****** (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Dale N. Atkins)

De Rome A. Seals 1527 Gallier Street New Orleans, LA 70117

COUNSEL FOR PRO SE PLAINTIFF/APPELLANT, DE ROME A. SEALS

Michael G. Bagneris DAVILLIER LAW GROUP 935 GRAVIER STREET, Suite 1702 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE, FRANKLIN AVENUE BAPTIST CHURCH

AFFIRMED

November 20, 2019 This appeal arises from damages allegedly sustained by plaintiff when he

was driving a bus for defendant. The bus experienced two flat tires on the day

plaintiff was driving, which he contends caused him undue stress. Plaintiff also

asserts that defendant owes him a refund for a deposit he placed for a choir trip he

could not attend. Numerous motions for summary judgment were filed. The trial

court granted defendant’s motion for summary judgment, which maintained that

plaintiff had no evidence of defendant’s alleged negligence or that he was entitled

to a refund.

Upon review, we find that no genuine issues of material fact exist because

plaintiff failed to establish that genuine issues of material fact exist as to

defendant’s alleged negligence once defendant pointed out an absence of factual

support. No exhibits or documents were attached to plaintiff’s opposition to the

motion for summary judgment. Therefore, we affirm the trial court’s judgment

granting defendant’s motion for summary judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 24, 2015, De Rome Seals drove a bus for Franklin Avenue Baptist

Church (“FABC”) to and from Port Sulphur, Louisiana, which contained members

1 of the Heart to Heart congregation. On the way to Port Sulphur, the bus

experienced a flat tire. Due to the design of the bus, Mr. Seals was able to

complete the drive to Port Sulphur. Upon arrival, Mr. Seals coordinated repairs.

On the return trip to FABC, the bus experienced another flat tire. Mr. Seals

contacted service personnel and again coordinated repairs.

Separate and distinct from the bus trip, Mr. Seals paid a $60 down payment

for a trip with the FABC Male Choral Tour. However, after signing up and paying

the down payment, Mr. Seals realized he would be unable to partake in the trip.

He sought a complete refund of his down payment, which was not granted.

Mr. Seals filed a complaint in forma pauperis against FABC contending that

the bus’ flat tires were a result of FABC’s negligence and that he suffered the

aggravation of a pre-existing illness,1 anxiety, embarrassment, spiritual confusion,

humiliation, and stress. He also averred that FABC owed him a $60 refund for his

trip down payment. Mr. Seals asserted that he was due $25,000,000.00 in

damages.

A few months after filing the complaint, Mr. Seals filed his first Motion for

Summary Judgment, which the trial court denied. Mr. Seals then sought appellate

review of the denial. This Court ordered the dismissal of his appeal for lack of

jurisdiction. Mr. Seals filed two subsequent Motions for Summary Judgment,

which were both denied by the trial court. After Mr. Seals contended that he was

not a part of FABC’s transportation ministry, FABC filed an exception of lack of

subject matter jurisdiction. FABC maintained that if Mr. Seals was not in the

transportation ministry, then he was an employee of FABC, which placed his

claims in worker’s compensation law as opposed to tort law.

1 Namely, a positive diagnosis for human immunodeficiency virus.

2 Mr. Seals opposed the exception and then filed a fourth Motion for

Summary Judgment asserting that he was entitled to judgment because he

possessed an affidavit of an alleged tire expert who stated that the bus tires were

dry rotted.2 FABC opposed the fourth Motion for Summary Judgment, but also

filed a Cross-Motion for Summary Judgment, which alleged that there were no

genuine issues of material fact because, while the flat tires caused Mr. Seals

inconvenience, he did not expend any personal funds for repairs. Additionally, Mr.

Seals did not produce evidence of negligence sufficient to establish that genuine

issues of material fact exist. The trial court denied Mr. Seals’ fourth Motion for

Summary Judgment and granted FABC’s Motion for Summary Judgment.3 The

trial court also determined that an outstanding Motion to Strike4 was rendered moot

and denied FABC’s Motion Compel.5 Mr. Seals’ Notice of Appeal of the

judgment followed.

Mr. Seals asserts numerous assignments of error, but his central contention

is that the trial court erred by granting FABC’s Motion for Summary Judgment and

denying his fourth Motion for Summary Judgment.

MOTION FOR SUMMARY JUDGMENT

The summary judgment “procedure is favored and shall be construed to

accomplish” and “secure the just, speedy, and inexpensive determination of every

2 Notably, no exhibits or documents were attached to support Mr. Seals’ fourth Motion for Summary Judgment. 3 Initially, the record on appeal did not contain a judgment. This Court issued a Rule to Show Cause as to why the appeal should not be dismissed based on the missing judgment. In response, Mr. Seals opposed a dismissal and attached a verified copy of the trial court’s judgment. This Court then noted that the judgment lacked decretal language sufficient to invoke jurisdiction. This Court then ordered the trial court to amend the judgment to comply with decretal language requirements. 4 FABC filed a Motion to Strike Mr. Seals’ expert affidavit, namely, the affidavit of the alleged tire expert who based his attestations on Mr. Seals’ representations as opposed to an inspection of the tires. 5 FABC previously filed a Motion to Compel Mr. Seals to pay the cost and fees of conducting a process verbal when Mr. Seals failed to appear for his deposition.

3 action. La. C.C.P. art. 966(A)(2). “[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.” La. C.C.P. art. 966(A)(3). Further, the burden of proof is on the

mover. La. C.C.P. art. 966(D)(1). However, “if the mover will not bear the burden

of proof at trial on the issue that is before the court on the motion for summary

judgment, the mover’s burden” is “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.” Id. “The burden is” then “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.” Id.

“The standard of review on a Motion for Summary Judgment is de novo.”

Richard v. Turner, 09-0161, p. 4 (La. App. 4 Cir. 7/1/09), 16 So. 3d 523, 525. We

utilize “the same criteria applied by trial courts to determine whether summary

judgment is appropriate.” Transworld Drilling Co. v. Texas Gen. Res., Inc., 604

So. 2d 586, 589 (La. App. 4th Cir. 1992).

FABC’s Motion for Summary Judgment

FABC’s Motion for Summary Judgment contended that no genuine issues of

material fact exist, as Mr. Seals failed to present evidence of negligence.

As this Court previously outlined:

In addressing negligence claims, Louisiana courts employ a duty-risk analysis under which a plaintiff must prove the following five elements: 1) the defendant’s duty of care to the plaintiff; 2) the defendant’s breach of that duty; 3) cause-in-fact; 4) legal causation (scope); and 5) damages to the plaintiff caused by that breach. Davis v. Witt, 02-3102, 02-3110, p. 11 (La. 7/02/03), 851 So.2d 1119, 1127 (citing Roberts v. Benoit, 605 So.2d 1032 (La.1991), on reh’g, 605 So.2d 1050, 1051 (La.1991)). If a plaintiff fails to prove any one of the five elements, a

4 defendant will not be held liable. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 633; Pitre v. Louisiana Tech Univ., 95-1466, 95- 1487, p. 9 (La. 5/10/96), 673 So.2d 585, 590.

Jones v. Stewart, 16-0329, pp. 8-9 (La. App. 4 Cir. 10/5/16), 203 So. 3d 384, 389-

90.

In support of the Motion for Summary Judgment, FABC attached the

drivers’ rules for the transportation ministry, the pre-trip checklist completed by

Mr. Seals before leaving FABC on May 24, 2015, excerpts from Mr. Seals’

deposition, and a letter from the Senior Pastor at FABC explaining that $50 of the

down payment was non-refundable, as being used to reserve transportation. The

excerpt from Mr. Seals’ deposition attached reflects that Mr. Seals testified that the

Senior Pastor at FABC was “untruthful” in the letter. Mr. Seals did admit to filling

out the pre-trip checklist.

In opposition, Mr. Seals submitted a one and a half page memorandum,

contending that FABC did not provide a refund policy or produce documents

“establishing any recent purchases of tires or inspections [sic] dates for the vehicle

in question.” No exhibits or documents were attached, even though Mr. Seals

attached documents to his previously filed motions for summary judgment.

Once FABC established that there was a lack of factual support regarding its

alleged negligence, the burden then shifted to Mr. Seals to produce factual support

sufficient to demonstrate a genuine issue of material fact. Mr. Seals failed to meet

the transferred burden of proof on a motion for summary judgment.

It is undisputed that the bus driven by Mr. Seals experienced two flat tires on

May 24, 2015. It is undisputed that Mr. Seals coordinated the required repairs.

FABC paid for all of the repairs. Mr. Seals completed the pre-trip checklist, which

noted that the tires seemed adequate prior to leaving FABC for Port Sulphur.

5 Additionally, although not attached, Mr. Seals’ deposition reveals that the affidavit

from his alleged tire expert was based on representations made by Mr. Seals, as

opposed to being based on an inspection of the bus and its tires.

“Generally, summary judgment is rarely appropriate in negligence cases

‘where a decision turns on whether or not defendant’s conduct constitutes tort.’”

Johnson v. Noto, 95-0306, p. 3 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1184, 1186,

quoting Smith v. Walgreens Louisiana Company, Inc., 542 So. 2d 766, 767 (La.

App. 4th Cir. 1989). However, “[t]he non-moving party is not allowed to rely on

the allegations of its pleadings in opposition to a properly supported motion for

summary judgment.” Schmidt v. Chevez, 00-2456, p. 4 (La. App. 4 Cir. 1/10/01),

778 So. 2d 668, 670. Further, when challenged, Mr. Seals “produced little more

than his own self-serving testimony,” which is insufficient. Edgefield v. Audubon

Nature Inst., Inc., 17-1050, p. 9 (La. App. 4 Cir. 3/27/19), 267 So. 3d 738, 744.

“Mere conclusory allegations, improbable inferences and unsupported speculation

will not support a finding of a genuine issue of material fact.” Sears v. Home

Depot, USA, Inc., 06-0201, p. 12 (La. App. 4 Cir. 10/18/06), 943 So. 2d 1219,

1228. “Such allegations, inferences and speculation are insufficient to satisfy the

opponent’s burden of proof, even if contained in a deposition.” Id. FABC

established the absence of factual support for Mr. Seals’ claims. Mr. Seals filed

only his memorandum. Mr. Seals did not produce evidence sufficient to

demonstrate that genuine issues of material fact exist as to FABC’s alleged

negligence. Accordingly, we find that the trial court correctly granted FABC’s

Motion for Summary Judgment.

MOTION TO COMPEL PAYMENT OF COSTS AND FEES

6 FABC states in its appellee brief that it assigns error to the trial court’s

denial of its Motion to Compel Plaintiff to Pay the Cost and Fee of Conducting a

Proces Verbal. However, the record does not contain a cross-appeal, answer to the

appeal, or an application for supervisory review regarding the trial court’s

judgment filed by FABC.

As an appellee, FABC was not required to answer Mr. Seals’ appeal “unless

[it] desires to have the judgment modified, revised, or reversed in part or unless he

demands damages against the appellant.” La. C.C.P. art. 2133. If changes are

sought, the appellee “must file an answer to the appeal, stating the relief

demanded, not later than fifteen days after the return day or the lodging of the

record whichever is later.” Id. Appellate courts will not consider an appellee’s

arguments for modification on appeal if an answer or cross-appeal were not filed.

King v. Sewerage & Water Bd. of New Orleans, 99-0382, P. 6 (La. App. 4 Cir.

11/24/99), 747 So. 2d 200, 203. As such, we will not address FABC’s single

assignment of error.

DECREE

For the above-mentioned reasons, we find that once FABC established the

absence of factual support for Mr. Seals’ negligence claims, Mr. Seals failed to

produce factual support sufficient to demonstrate the existence of a genuine issue

of material fact as to FABC’s alleged negligence or the repayment of the $60. We

find that the trial court did not err by granting FABC’s Motion for Summary

Judgment. As FABC did not file an answer or cross-appeal, we are prohibited

from addressing the Motion to Compel. The judgment of the trial court is

affirmed.