Kleinman v. Bennett

80 So. 3d 689, 11 La.App. 3 Cir. 947, 2011 La. App. LEXIS 1472, 2011 WL 6058157
CourtLouisiana Court of Appeal
DecidedDecember 7, 2011
DocketNo. 11-947
StatusPublished
Cited by6 cases

This text of 80 So. 3d 689 (Kleinman v. Bennett) 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
Kleinman v. Bennett, 80 So. 3d 689, 11 La.App. 3 Cir. 947, 2011 La. App. LEXIS 1472, 2011 WL 6058157 (La. Ct. App. 2011).

Opinion

GENOVESE, Judge.

[ i Defendant, William Patrick Bennett, appeals the trial court’s grant of summary judgment in favor of Dr. Harry Kleinman. For the following reasons, we reverse the trial court judgment and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 2010, Dr. Kleinman filed a lawsuit alleging that Mr. Bennett owed him money. According to Dr. Kleinman’s petition, Mr. Bennett “is indebted to [him] in the amount of ... ($34,743.64) with ten percent (10%) interest thereon from June 6, 2001, until paid, and for all costs of this suit[.]” Dr. Kleinman’s petition further alleges “[o]n June 5, 2001, [he] loaned $34,743.64 to [Mr. Bennett], and [at] that time, [Mr. Bennett] gave [him] an TOU’ dated June 5, 2001, and indicating the amount of the loan plus [ten percent] interest.” Finally, Dr. Kleinman acknowledges that “[o]n April 5, 2005, [Mr. Bennett] paid $15,000.00, and on April 6, 2005, [Mr. Bennett] paid an additional $5,000.00 towards the debt.” Mr. Bennett filed an answer, in proper person, on August 24, 2010, denying all allegations set forth in Dr. Kleinman’s petition.

On January 31, 2011, Dr. Kleinman filed a Motion for Summary Judgment asserting:

[He] is entitled to a Summary Judgment granting the relief prayed for in his petition on the grounds that the pleadings and documents on file herein, and the sworn Affidavits annexed hereto ... show that there is no real or genuine issue as to any material fact and [that he was] entitled to [judgment] as a matter of law[.]

In support of his motion, Dr. Kleinman submitted two affidavits: his own, and an affidavit from John S. Hood. The assertions contained in Dr. Kleinman’s affidavit mirror every allegation set forth in his petition, with the addition of one allegation, namely:

[691]*691|2Prior to [Mr. Bennett’s] payments [made on April 5, 2005 and April 6, 2005, Dr. Kleinman] delivered to counsel for [Mr. Bennett] the subject “IOU” (along with some other “IOU”s) in an attempt to get some of the debts satisfied. When the “IOU”s were copied and returned to [him], the subject “IOU” was not returned, and [he] has not seen it since that time.

The affidavit of Mr. Hood asserted that he is an attorney and that he was present in a representative capacity on behalf of Dr. Kleinman during alleged settlement negotiations which occurred prior to the instant suit being filed. According to Mr. Hood:

On June 18, 2009, representing [Dr. Kleinman], he met with [Mr. Bennett] and his attorney, Jay Delafield[,] at Mr. Delafield’s office to discuss the balance due and payment arrangements on the original loan of $34,743.04 [sic]. Mr. [Bennett]’s payments of $15,000.00 and $5,000.00 were acknowledged, and payment of the balance was discussed. At that point, there was a dispute as to the amount of interest on the loan, and Mr. [Bennett] indicated he would pay the principal only on the balance remaining, $15,000.00, by the end of the year.

The record indicates that on February 24, 2011, Mr. Bennett, in proper person, filed a Reconventional Demand and a Motion and Order for Continuance. In his Reconventional Demand, Mr. Bennett alleged that Dr. Kleinman owed him money as a result of a “business relationship.” Mr. Bennett sought a judgment “rejecting [Dr.] Kleinman[’]s demands and condemning [Dr. Kleinman] to pay [him] such damages as are reasonable[.]” Mr. Bennett’s Motion and Order for Continuance sought to delay the hearing set for March 4, 2011, on Dr. Kleinman’s Motion for Summary Judgment, in order “to allow for discovery to take place in the [R]econventional Demand filed this day in this matter.” The trial court denied Mr. Bennett’s request for a continuance.

The hearing on Dr. Kleinman’s Motion for Summary Judgment was held on March 4, 2011. At said hearing, Mr. Bennett was represented by counsel. Counsel for Mr. Bennett sought to enter an oral plea of prescription; however, the trial court 1 ..¡declared, “you can do that on appeal. You can do that after a judgment, but I’m not going to on the day of a hearing on a summary judgment allow the defendant to disrupt the orderly process of the case.” After hearing arguments by both counsel which focused primarily on whether this matter had prescribed, the trial court granted Dr. Kleinman’s Motion for Summary Judgment. A judgment was signed on March 22, 2011, in favor of Dr. Kleinman and against Mr. Bennett “in the full sum and amount of $34,743.64, with 10% interest per annum, from June 6, 2001, until paid, subject to a credit of $20,000.00, and. for all costs of these proceedings.” Mr. Bennett has appealed.

ASSIGNMENTS OF ERROR

Mr. Bennett asserts the trial court erred: (1) “in giving weight to the self[-]serving [a]ffidavit of [John S. Hood;]” (2) “in granting the Motion for Summary Judgment despite the genuine issue of material fact[;]” and (3)

in granting a judgment on amount owed when[,] on the face of pleadings, the loan had prescribed and no specific evidence of any acknowledgement of the debt to interrupt or suspend prescription. [Mr. Bennett’s r]econventional demand alleged amounts owed by [Dr. Kleinman to Mr. Bennett] which offsets any amount owed by [Mr. Bennett].

DISCUSSION

Standard of Review

“Appellate courts review summary judgment de novo, using the same criteria that [692]*692govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p. 25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive ^determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C). Dr. Kleinman, as the movant herein, bears the initial burden of proof and must show that no genuine issue, of material fact exists. La.Code Civ.P. art. 966(C)(2). If he successfully meets his burden, then the burden shifts to Mr. Bennett to present factual support adequate to establish that he will be able to satisfy his evidentiary burden at trial. Id. If Mr. Bennett fails to produce the factual support necessary to establish that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765-66.

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Cite This Page — Counsel Stack

Bluebook (online)
80 So. 3d 689, 11 La.App. 3 Cir. 947, 2011 La. App. LEXIS 1472, 2011 WL 6058157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleinman-v-bennett-lactapp-2011.