Elmore Tregre, II Versus Bis Services, LLC

Opinion

ELMORE TREGRE, II NO. 23-C-124

VERSUS FIFTH CIRCUIT

BIS SERVICES, LLC, ET AL. COURT OF APPEAL

STATE OF LOUISIANA

November 04, 2023

Linda Wiseman First Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

DENIED WITH REASONS

MEJ FHW RAC

CONCURS WITH REASONS

SMC

CONCURS IN THE DENIAL OF THE APPLICATION FOR REHEARING FOR THE REASONS ASSIGNED BY CHEHARDY, C.J.

JGG

JOHNSON, J.

Relator seeks reconsideration of this Court’s denial of its writ application

number 23-C-124.

Uniform Rules-Courts of Appeal, Rule (URCA) 2-18.7 provides as follows:

2-18.7. When Rehearing Will Be Considered

An application for rehearing will be considered in cases where

the court has:

(A) Granted a writ application on the merits;

(B) Dismissed an appeal; or

(C) Ruled on the merits of an appeal.

URCA Rule 4-9 provides that “Rules 2-18.1 through 2-18.7 apply to

requests for rehearings related to writ applications.” Because Relator’s writ

application was denied, Relator is not entitled to a rehearing.

Further, the majority of the five-judge panel that heard the matter on October

16, 2023 finds Relator’s argument that the opinion in this case cannot be

reconciled with the Court’s opinion in Gerald P. Snyder v. Donovan D. Bourgeios,

22-598 (La. App. 5 Cir. 10/4/23), --- So.3d ---- (2023 WL 6453734), or the

Supreme Court’s decision in Farrell v. Circle K Stores, Inc., 22-00849 (La.

3/17/23), 359 So.3d 467, is without merit. The instant case is factually

distinguishable from Snyder and Farrell.1 The allegedly unreasonably hazardous

condition was present at the end of the entrance/exit of the AWAR (All Weather

1 See Farrell, 359 So.3d at 474-475:

Thus, it is conceivable that an allegedly hazardous condition, as alleged in this case, located at the entrance to the store, may ultimately be determined to be unreasonably dangerous; whereas, the same condition, located in the corner of a parking lot, may not be unreasonably dangerous because the likelihood and magnitude of harm is vastly different. It is also relevant that the pool of water was not located in a customarily traversed area, such as the entrance to the store, where patrons would likely encounter it or be forced to encounter it to go into the location.

Access Road), the AWAR was required to remain open for use by pedestrians and

cyclists throughout the levee armoring project, and contract terms required BIS to

keep the AWAR free and clear of debris.

Based on the foregoing, Relator’s request for rehearing is denied.

ELMORE TREGRE, II NO. 23-C-124

VERSUS FIFTH CIRCUIT

BIS SERVICES, LLC, ET AL. COURT OF APPEAL

STATE OF LOUISIANA

CHEHARDY, C.J., CONCURS WITH REASONS

I concur with the panel’s decision to deny rehearing, because a request for

rehearing from the denial of a writ application is not permitted under the Uniform

Rules – Courts of Appeal, Rules 4-9 and 2-18.7. Were it not for this procedural

prohibition, I would grant rehearing for the reasons discussed in my dissent.

ELMORE TREGRE, II NO. 23-C-124

VERSUS FIFTH CIRCUIT

BIS SERVICES, LLC, ET AL. COURT OF APPEAL

STATE OF LOUISIANA

GRAVOIS, J., CONCURS IN THE DENIAL OF THE APPLICATION FOR REHEARING FOR THE REASONS ASSIGNED BY CHEHARDY, C.J.

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ

FREDERICKA H. WICKER CHIEF DEPUTY CLERK

JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK

JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET

JUDGES 101 DERBIGNY STREET (70053)

DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489

GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX

www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 11/04/2023 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-C-124

E-NOTIFIED 24th Judicial District Court (Clerk) Hon. Scott U. Schlegel (District Judge) Hon. Joseph A. Marino, III (District Judge) David P. Salley (Respondent) Michael W. Rutledge (Respondent) Stephen C. Resor (Respondent) Kirk N. Aurandt (Relator) Michael W. McMahon (Relator) Alex P. Tilling (Respondent) James A. Prather (Respondent) Trevor M. Cutaiar (Respondent)

MAILED James G. Albertine, III (Respondent) John Zazulak (Respondent) Joshua Dierker (Respondent) Robert L. Keller, II (Respondent) Attorney at Law Attorney at Law Attorney at Law 701 Poydras Street Three Sanctuary Boulevard 365 Canal Street Suite 600 Third Floor Suite 1710 New Orleans, LA 70139 Mandeville, LA 70471 New Orleans, LA 70130