Gregory K. Hornage v. Cleco Power, LLC

• Court: Louisiana Court of Appeal
• Decided: April 6, 2005
• Docket: CA-0004-1492
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-1492

GREGORY K. HORNAGE

VERSUS

CLECO POWER, L.L.C., ET AL.

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APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 216,115, HONORABLE B. C. BENNETT, JR., DISTRICT JUDGE

MICHAEL G. SULLIVAN JUDGE

Court composed of Oswald A. Decuir, Michael G. Sullivan, and Billy H. Ezell, Judges.

REVERSED AND REMANDED.

Howard N. Nugent, Jr. Nugent Law Firm Post Office Box 1309 Alexandria, Louisiana 71309-1309 (318) 445-3696 Counsel for Plaintiff/Appellee: Gregory K. Hornage

Albin A. Provosty Provosty, Sadler, deLaunay, Fiorenza & Sobel Post Office Drawer 1791 Alexandria, Louisiana 71309-1791 (318) 445-3631 Counsel for Defendant/Appellant: Cleco Power, LLC Robert L. Bussey Bussey & Lauve Post Office Box 307 Alexandria, Louisiana 71309-0307 (318) 449-1937 Counsel for Defendant/Appellant: Rapides Parish Police Jury

Randall B. Keiser Keiser & Auzenne Post Office Box 12358 Alexandria, Louisiana 71315 (318) 443-6168 Counsel for Defendant/Appellant: The Town of Woodworth

John A. Ellis Louisiana Department of Justice Post Office Box 1710 Alexandria, Louisiana 71309 (318) 487-5944 Counsel for Defendant/Appellee: State of Louisiana through Department of Transportation and Development SULLIVAN, Judge.

The issue presented by this appeal is whether summary judgment dismissing

the Department of Transportation and Development (DOTD) from this one-vehicle

accident case should have been granted, given that its co-defendants, CLECO Power,

L.L.C. (CLECO), the Town of Woodworth (the Town), and the Rapides Parish Police

Jury (the Police Jury), were not served with the motion and did not receive notice of

the hearing on the motion. For the following reasons, we reverse and remand.

Procedural History

Gregory Hornage filed this suit, alleging that he was injured on February 21,

2003, when an excessive accumulation of water in a curve on “Coolee Crossing,” a

road in Rapides Parish, caused him to lose control of his vehicle, after which he

struck a fire hydrant owned by the Town and then a utility pole owned by CLECO.

In his petition, Mr. Hornage identified both the Police Jury and DOTD as the owners

of the road and its adjacent right of way. Allegations of fault against these two

defendants included the failure to maintain the paved surface of the road, the failure

to create a forgiving shoulder, the failure to follow industry standards regarding the

placement of the utility pole near a curve within the right of way, and the failure to

remove or reposition the utility pole. Allegations against CLECO, as the owner of

the utility pole, included the failure to position the pole so as to provide a recovery

area for motorists who foreseeably leave the road and the failure to install a

breakaway pole and guy wires. Allegations against the Town included the

positioning of the fire hydrant near the curve, the failure to erect a shield or barrier,

and the failure to fashion a drainage arrangement that would not direct water onto the

paved surface of the road. CLECO, the Town, and the Police Jury filed answers denying liability and

alleging that the sole cause of the accident was the fault of the plaintiff and/or of third

parties for whom they were not responsible. The Town’s answer also included

allegations of fault against each named co-defendant.

DOTD did not file an answer, but instead filed a motion for summary judgment

on June 21, 2004, contending that it neither owned nor maintained a road known as

“Coolee Crossing” in Rapides Parish. DOTD requested service of this motion only

on the plaintiff, and the clerk of court did not notify the co-defendants of the hearing

on the motion, although they had requested notice of trial pursuant to La.Code Civ.P.

art. 1572. The trial court granted the motion in open court on July 24, 2004, after a

hearing at which only DOTD’s counsel appeared. The judgment dismissing DOTD

from the suit was signed on August 2, 2004. CLECO, the Town, and the Police Jury

filed this appeal after receiving the notice of the signing of the judgment required by

La.Code Civ.P. art. 1913. DOTD has not filed a brief in response to the appeal.

Discussion

Appellate courts review summary judgments de novo under the same criteria

that govern the trial court’s consideration of whether a summary judgment is

appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991).

The mover is entitled to judgment if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with supporting affidavits, if any,

show there is no genuine issue of material fact and the mover is entitled to judgment

as a matter of law. La.Code Civ.P. art. 966(B).

However, in addition to proof that the mover is entitled to judgment under the

substantive law, “courts have consistently found that the mover must also show that

2 he has secured the judgment in accordance with the procedural law in order to have

the summary judgment upheld on appeal.” Macaluso v. Macaluso, 99-935, p. 5

(La.App. 1 Cir. 5/12/00), 762 So.2d 180, 183. In Macaluso, the court reversed

summary judgment dismissing one defendant where the plaintiff was not served with

the motion at least ten days before the hearing as required by the version of La.Code

Civ.P. art. 966 then in effect1 and did not receive adequate notice of the hearing date

as required by the local court rules adopted pursuant to La.Code Civ.P. art. 1571.

Finding that these procedural irregularities deprived the plaintiff of the opportunity

to be heard as well as notice of the pendency of the action, the court rejected the

defendant’s argument that the judgment should nonetheless be affirmed because the

pleadings and discovery showed that he was entitled to judgment as a matter of law.

Had the co-defendants in the present case been served with copies of DOTD’s

motion and/or received adequate notice of the hearing date, they would have been

afforded an opportunity to oppose the motion and would have been entitled to appeal

a ruling dismissing DOTD from the suit. In Delanzo v. ABC Corp., 572 So.2d 648,

650 (La.App. 5 Cir. 1990), the court held that a co-defendant who had a “very real

and actual interest in determining whether plaintiff can make a case” against another

defendant was an “aggrieved party” entitled to appeal summary judgment dismissing

that defendant from the suit. The court considered the judgment dismissing one

defendant, a retail distributor in a products liability case, to be adverse to the interests

of a remaining defendant, the manufacturer, because the dismissed defendant’s

conduct “may have a direct bearing on the ultimate outcome of the litigation[.]” Id.

Additionally, this court has previously recognized that a motion for summary

1 Article 966(B) now provides in part: “The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing.”

3 judgment determining liability should consider the conduct of all defendants. See

Chapman on Behalf of Arvie v. Liberty Mut. Ins. Co., 96-458 (La.App. 3 Cir.

11/6/96), 682 So.2d 906, and Dauzat v. Hartford Ins. Co. of the Midwest, 95-50

(La.App. 3 Cir. 5/3/95), 657 So.2d 188.

In the present case, the plaintiff has made several allegations of fault against

DOTD that, if proven, could either exonerate or reduce the percentage of fault

ultimately assessed to the other defendants. Under these circumstances, we find that

the co-defendants should have been given the opportunity to respond to DOTD’s

motion, as they had a “very real and actual interest” in DOTD’s remaining in the

litigation. Delanzo, 572 So.2d at 650. Even if the co-defendants were not considered

to be “adverse part[ies]” under La.Code Civ.P. art. 966(B), entitling them to service

of the motion and supporting affidavits at least fifteen days before the hearing, they

were at least entitled to notice of the hearing date under La.Code Civ.P. arts. 1571

and 1572.

Decree

For the above reasons, the judgment of the trial court is reversed, and the case

is remanded for further proceedings consistent with this opinion. Costs of this appeal

in the amount of $398.00 are assessed to DOTD.