Mor-Tem Risk Management Services, Inc. v. Shore

978 So. 2d 588, 2008 La. App. LEXIS 403, 2008 WL 725020
CourtLouisiana Court of Appeal
DecidedMarch 19, 2008
DocketNo. 43,169-CA
StatusPublished
Cited by5 cases

This text of 978 So. 2d 588 (Mor-Tem Risk Management Services, Inc. v. Shore) 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
Mor-Tem Risk Management Services, Inc. v. Shore, 978 So. 2d 588, 2008 La. App. LEXIS 403, 2008 WL 725020 (La. Ct. App. 2008).

Opinion

LOLLEY, J.

| ¶ Mor-Tem Risk Management Services, Inc. (“Mor-Tem”) appeals two judgments by the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, in favor of Michael Shore, which judgments granted Shore’s motion for summary judgment/motion for sanctions, respectively. For the following reasons, we affirm the trial court’s judgments.

Facts

Mor-Tem is an insurance adjusting company and third party administrator for workers’ compensation claims. Michael Shore was Mor-Tem’s claims manager in its Monroe, Louisiana office. On June 28, 2004, Mor-Tem terminated Shore’s employment, and afterward, several of Mor-Tem’s clients hired Shore to handle their insurance claims.

Subsequently, Mor-Tem filed suit against Shore, claiming that he had intentionally interfered with Mor-Tem’s contracts with its clients. Additionally, Mor-Tem claimed that Shore had taken property, primarily a table, from the building where the business had been located, and it sought damages for wrongful conversion of property. Shore answered and subsequently filed a motion for summary judgment in connection with the two claims. The trial court partially granted his motion and dismissed the intentional interference with contracts claim — that judgment is not the subject of this appeal. However, the trial court denied the summary judgment in connection with the conversion claim. Later, Shore filed a Motion for Summary Judgment/Motion for Sanctions, arguing that Mor-Tem was unable to present any evidence in support of its conversion claim. After the trial court’s refusal to allow Mor-Tem’s affidavit in support of its | ¡«opposition to the motion, the trial court granted Shore’s motion for summary judgment and dismissed Mor-Tem’s claims against Shore. As to Shore’s motion for sanctions, Mor-Tem was ordered to pay Shore’s “reasonable attorneys fees” in the amount of $10,500.00 plus the costs of the proceedings. Two separate judgments were entered, and those are the subject of Mor-Tem’s appeal.

Discussion

On appeal, Mor-Tem raises four assignments of error, the first two of which are related. First, Mor-Tem argues that the trial court erred in refusing to allow its filing of an affidavit in opposition to Shore’s motion for summary judgment. Second, Mor-Tem maintains that the trial court erred in granting Shore’s motion for summary judgment, because, based on the opposing affidavit, genuine issues of material fact existed. We disagree with both assertions.

[591]*591Here, according to Mor-Tem, the following events occurred in relation to the subject affidavit:

• April 2, 2007: Mor-Tem filed an opposition to Shore’s motion for summary judgment, claiming to have attached the unsigned, un-notarized affidavit of Vanessa James. The hearing on Shore’s motion for summary judgment was scheduled for April 12, 2007;
• April 4, 2007: Mor-Tem supplied Shore’s attorney with a fax copy of James’ signed and notarized affidavit; and,
• April 9, 2007: Mor-Tem filed a motion to substitute the unsigned affidavit with the signed affidavit, which motion was denied by the trial court with a notation by the trial court that there was no affidavit in the record.

IsNotably, at the hearing on Mor-Tem’s motion for new trial, the trial court described the proceedings surrounding the affidavit as follows:

Now the affidavit of Vanessa James was not submitted with the original motion for summary judgment in opposition. It was not in your opposition. It was not submitted. It wasn’t presented to the Court until the day of the hearing and then it wasn’t even notarized.

Mor-Tem argues that the affidavit attests to matters at the heart of the proceedings and justice was not served without its consideration. Mor-Tem states that the trial court’s refusal to consider the affidavit was a “hyper-technical” application of the rule and such application is contrary to the liberal construction mandated by La. C.C.P. art. 5051, which states that “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.”

Pursuant to La. C.C.P. art. 966 B, “[t]he adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary.” Here, the trial court was within its discretion to not allow the untimely filing of the affidavit. We do not consider it “hyper-technical” for the trial court to strictly adhere to the article. As noted by the trial court, it does not appear that the unverified version of the affidavit was filed with Mor-Tem’s opposition memorandum, despite Mor-Tem’s contention otherwise. It appears that the affidavit was presented to the trial court at' the hearing on |4the motion for summary judgment and then only became part of the record as a filing when Mor-Tem later filed its motion for new trial after the trial court granted Shore’s motion for summary judgment.

However, although the trial court did not allow the late-filing of the affidavit, it is clear from the oral reasons for judgment, that the affidavit was considered to some extent, even if it was insufficient to change the trial court’s ruling. Likewise, in our de novo review of the record, even considering the contents of the affidavit, we cannot see how it serves to benefit Mor-Tem’s opposition to Shore’s motion for summary judgment. That is, we fail to see any evidentiary value to the affidavit in favor of Mor-Tem.

In her affidavit, James averred that she was employed by Hammerman & Gainer, which had purchased Mor-Tem in 2002. According to James, the corresponding purchase agreement purportedly stated that Mor-Tem was in possession of certain items, and that Hammerman & Gainer became the owner of those items [592]*592by virtue of its purchase of Mor-Tem. However, Shore testified in his deposition that the table, which is the subject of the conversion lawsuit and the motion for summary judgment, was owned by him prior to Mor-Tem purchasing his business. Notably, the building in which Mor-Tem conducted its business belonged to Shore, and Mor-Tem leased it from Shore. There is nothing in the record, including James’ affidavit, establishing conclusively that Mor-Tem ever owned the table in question, because the affidavit only considers the purchase of the business by Hammer-man & Gainer-there is no evidence that Mor-Tem purchased the | stable and other items from Shore when it originally purchased his business. This is the missing link. Even considering James’ affidavit, we cannot say that Mor-Tem ever established that it was the owner of the table or any other specific items that it claimed Shore had converted. Mor-Tem was unable to provide any evidence of ownership of any of the movables it claims that he wrongfully converted. In light of Mor-Tem’s failure to provide any documentation that it ever owned the items in question, and Shore’s assertion that he indeed owned it, the trial court properly granted motion for summary judgment in his favor. Thus, the trial court was not in error in granting Shore’s motion for summary judgment notwithstanding the affidavit.

Mor-Tem’s last two assignments of error are related to the award of sanctions.

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Bluebook (online)
978 So. 2d 588, 2008 La. App. LEXIS 403, 2008 WL 725020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mor-tem-risk-management-services-inc-v-shore-lactapp-2008.