Duncan v. Balcor Property Management, Inc.

615 So. 2d 985, 1993 La. App. LEXIS 1016
CourtLouisiana Court of Appeal
DecidedMarch 5, 1993
DocketNo. 92 CA 0017
StatusPublished
Cited by1 cases

This text of 615 So. 2d 985 (Duncan v. Balcor Property Management, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duncan v. Balcor Property Management, Inc., 615 So. 2d 985, 1993 La. App. LEXIS 1016 (La. Ct. App. 1993).

Opinion

CARTER, Judge.

This appeal arises out of a trial court judgment granting a motion for summary judgment.

FACTS

On July 11, 1988, Allstate Painting (“Allstate”) entered into a contract with Balcor Property Management, Inc. (“Balcor”), the management agent of Sherwood Acres Apartments in Baton Rouge, for the “exterior building repair and painting” of Sherwood Acres apartment complex.

Allstate then engaged a carpentry subcontractor, the Robert Kelly Company, in connection with the work contracted for Sherwood Acres Apartments.

On August 8, 1988, Nicky Duncan, an employee of the Robert Kelly Company, was injured during the course and scope of his employment while performing certain renovations and repairs on one of the apartment buildings. Duncan was working approximately twenty-five feet high on an extension ladder and was in the process of removing rotten boards from the soffit, facia, and chimney of one of the apartment buildings, when a swarm of wasps attacked him, causing him to rush down the ladder and fall. Duncan allegedly sustained serious injuries as a result of this fall.

On July 31, 1989, Duncan filed the instant tort suit for personal injuries sustained in the fall. Named as defendants were Balcor Property Management, Inc., Balcor Management Services, Inc., The Bal-cor Company, Sherwood Acres Partners, Ltd., and Sherwood Acres Apartments. On [987]*987August 23, 1991, the defendants filed a motion for summary judgment. By partial judgment of dismissal, Duncan dismissed his suit against all defendants, with the exception of Balcor Property Management, Inc. (Balcor). The trial court granted Bal-cor’s motion for summary judgment on September 13, 1991, finding that Balcor was Duncan’s statutory employer under LSA-R.S. 23:1032 and under the two-contract theory and dismissing Duncan’s demands against Balcor with prejudice.

From this adverse judgment, Duncan appeals contending that the trial court erred in granting Baleor's motion for summary judgment. Duncan asserts that material issues of fact remain with respect to Bal-cor’s claim regarding statutory employer status.

Balcor answered Duncan’s appeal contending that, although it had urged other bases upon which the trial court could have granted its motion for summary judgment on the issue of tort liability, the trial court failed to grant its motion for summary judgment on those issues. Accordingly, Balcor requested that this court review the trial court’s denial of its summary judgment with regard to its tort liability.

Thereafter, Duncan filed with this court a motion to strike certain portions of Bal-cor’s appellate brief. Duncan asserted that the denial of a motion of summary judgment is not a final judgment and cannot be raised on appeal from the granting of the summary judgment on other grounds.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine factual dispute. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d 1115, 1120 (La.App. 2nd Cir.), writ denied, 587 So.2d 695 (La.1991). The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Thompson v. South Central Bell Telephone Company, 411 So.2d 26, 27 (La.1982); Legros v. Norcen Exploration, Inc., 583 So.2d 859, 860 (La.App. 1st Cir.), writs denied, 588 So.2d 101, 588 So.2d 109 (La.1991); Bercegeay v. Cal-Dive International, Inc., 583 So.2d 1181, 1183 (La.App. 1st Cir.), writ denied, 589 So.2d 1070 (La.1991); Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d 381, 383-84 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1136 (La. 1991).

A fact is material if it is essential to the plaintiff’s cause of action under the applicable theory of recovery and without which the plaintiff could not prevail. Material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Penalber v. Blount, 550 So.2d 577, 583 (La.1989); Eads Operating Company, Inc. v. Thompson, 537 So.2d 1187, 1194 (La.App. 1st Cir.1988), writ denied, 538 So.2d 614 (La.1989).

The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reasonable minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Legros v. Norcen Exploration, Inc., 583 So.2d at 860; Robertson v. Our Lady of the Lake Regional Medical Center, 574 So.2d at 384. To satisfy this burden, the mover must meet a strict standard by showing that it is quite clear what the truth is and excluding any real doubt as to the existence of material fact. Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120. The court must closely scrutinize the papers supporting the position of the mover, while the papers of the party opposing the motion are to be treated indulgently. Ortego v. Ortego, 425 So.2d 1292, 1297 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 147 (La.1983).

Summary judgments are not favored and should be used cautiously and sparingly, and any reasonable doubt should be resolved against the mover. Penalber v. Blount, 550 So.2d at 583; Hollis v. City of [988]*988Baton Rouge/Parish of East Baton Rouge, 593 So.2d 388, 389 (La.App. 1st Cir.1991); Yocum v. City of Minden, 566 So.2d 1082, 1086 (La.App. 2nd Cir.1990). In determining whether material issues have in fact been disposed of, any doubt is to be resolved against granting the summary judgment and in favor of trial on the merits. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). This is true even if grave doubts exist as to a party’s ability to establish disputed facts at trial. Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068, 1070-71 (La. App. 3rd Cir.1985). Where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits, and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. Duvalle v. Lake Kenilworth, Inc., 396 So.2d 1268, 1269 (La.1981); Jones v. Briley, 593 So.2d 391, 393 (La.App. 1st Cir.1991); Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc., 579 So.2d at 1120.

With regard to the standard of review to be applied by this court, the Louisiana Supreme Court in Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991), recently noted that appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.

Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sun Belt Constructors, Division of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350, 352 (La.App. 5th Cir.1988).

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Duncan v. Balcor Property Management, Inc.
615 So. 2d 985 (Louisiana Court of Appeal, 1993)

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