Olympia Roofing Co. v. Henican

534 So. 2d 16, 1988 La. App. LEXIS 2034, 1988 WL 105493
CourtLouisiana Court of Appeal
DecidedOctober 11, 1988
DocketNo. CA-8908
StatusPublished
Cited by1 cases

This text of 534 So. 2d 16 (Olympia Roofing Co. v. Henican) 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
Olympia Roofing Co. v. Henican, 534 So. 2d 16, 1988 La. App. LEXIS 2034, 1988 WL 105493 (La. Ct. App. 1988).

Opinion

BYRNES, Judge.

Appellants, Olympia Company, Inc. Olympia Roofing Company and Trailer Truck Body Parts and Service Inc., brought this negligence action alleging that the testimony of appellee, C. Ellis Henican, during a lawsuit previously brought by Olympia Roofing Company, Inc. against the City of New Orleans, caused the dismissal of that lawsuit. We affirm the district court’s granting of appellees’ Motion for Summary Judgment. Further, because we find this [17]*17appeal to be frivolous we assess $2,500.00 as damages, plus court costs, against appellants and their appellate attorney.

FACTS

This appeal arises out of two lawsuits filed by appellants. The first, filed in 1977, contained allegations by appellants against Mr. Henican concerning the allegedly false testimony he gave in an earlier suit brought by Olympia Roofing Company Inc. against the City of New Orleans and the UPT. It was alleged that, at the trial of this earlier matter Mr. Henican testified that the proper name for the plaintiff in that action was Olympia Company, Inc. not Olympia Roofing Company, Inc. Subsequently, that suit was dismissed for failure to name the proper party plaintiff. Appellants herein contend that the dismissal in the earlier suit against the City was due to Mr. Henican’s allegedly false testimony regarding the correct name of Olympia. Rather than cure the relatively minor defect in the prior suit by amending the petition or appealing the judgment of dismissal, appellants instead filed suit in 1977 against Mr. Henican. With the exception of four amending petitions the 1977 suit remained inactive for seven years until Mr. Henican filed a Motion for Summary Judgment in 1984. The Judge referred the Motion to the merits and set the case for trial before a Commissioner on March 15, 1985. Prior to this trial date appellants filed a second suit attempting to revive its previously dismissed claims against the City and the UPT. The 1985 suit also realleged the claims against Mr. Henican as an alternative to recovery from the City and the UPT.

Both suits were apparently consolidated and in March, 1987 Mr. Henican re-urged his previously filed Motion for Summary Judgment. The Motion was heard in April, 1987 before a Commissioner. The Commissioner recommended granting the Motion which recommendation was adopted by the District Court on May 1, 1987. The judgment was amended, due to an apparent clerical error, to reflect that the dismissal of appellants’ claims against Mr. Henican was effective as to both the 1977 and 1985 suits, as consolidated. Appellants’ Motion for a New Trial was denied and this appeal followed,

LAW

Louisiana Code of Civil Procedure Article 966(B) provides' in pertinent part, as follows:

“The judgment sought shall be rendered forthwith if 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, and that mover is entitled to judgment as a matter of law.” (emphasis added)

It is well settled that summary judgment should only be granted when reasonable minds must inevitably concur that there exist no genuine issues of material fact. Whitney v. Maltet, 442 So.2d 1361 (La.App. 3rd Cir.1983), writ den 445 So.2d 437. All reasonable doubts as to the propriety of the summary judgment are to be resolved against granting the motion and in favor of trial on the merits. American Bank & Trust Co. v. Sunbelt Environmental Systems, Inc., 451 So.2d 1111 (La.App. 1st Cir.1984); Otter v. Sharp Electric, Inc., 451 So.2d 1235 (La.App. 4th Cir.1984). In considering the motion the trial court should look to the pleadings, depositions and other documents of record to determine the existence of a genuine issue of material fact. Otter v. Sharp Electric, Inc., supra; Kerwin v. Nu-Way Construction Service, Inc., 451 So.2d 1193 (La.App. 5th Cir.1984). Additionally, it has been held that one purpose of the summary judgment is to dispose of frivolous claims. Schaefer v. Lynch, 406 So.2d 185 (La.1981). Although summary judgments are not generally favored we have reviewed few, if any, cases more deserving of summary disposition than the case at bar.

After sifting through appellants’ “brief” and separating out the primarily superfluous and purely vindictive statements it is abundantly clear that the only material fact in this lawsuit concerns Mr. Henican’s testimony at the 1976 trial. Although appellants set out many other sup[18]*18posedly material facts, it is solely the allegedly false testimony of the attorney that forms the entire basis for the case before this court.

William J. Manion, who is not only appellants’ attorney, but, also the President of Olympia Company, Inc. testified unequivocally that as President of Olympia Company he had no quarrel with the way in which Mr. Henican or his law firm handled Olympia’s corporate affairs. Manion testified further- that the sole basis of the instant law suit was Mr. Henican’s testimony at trial in 1976. (Manion deposition at pp. 30-31, 33, 34 and 45-46).

Thus, the sole material fact concerns the content of that testimony. The only question before us, then, for purposes of determining the propriety of granting the summary judgment' is whether this genuine issue was in dispute. We find that it was not.

We do not have the transcript from the 1976 trial before us. This is apparently due to Mr. Henican’s failure to timely request same following the trial. The record before us, however, contains sufficient evidence of Mr. Henican’s testimony at that trial. As noted above, Mr. Manion testified in deposition that at the 1976 trial Mr. Henican testified that the proper party plaintiff to the earlier lawsuit was Olympia Company Inc. and not Olympia Roofing Company, Inc. Moreover, Mr. Henican does not dispute that this was the content of his 1976 testimony. Clearly, then, the actual content of Mr. Henican’s testimony is not in dispute and therefore is not an issue of material fact. Similarly, the record supports the finding that the veracity of Mr. Henican’s testimony is likewise not in dispute.

The record contains copies of the annual reports of “Olympia Company Inc.” encompassing the years 1972-1982. These reports were filed with the Secretary of State and signed by Mr. Manion. Moreover, Mr. Manion testified regarding the name change in 1969 from Olympia Roofing to “Olympia Company, Inc.” and the fact that the name was still “Olympia Company, Inc.” at the time of Mr. Henican’s testimony. Mr. Manion specifically testified at pp. 31-32 of his deposition, as follows:

“Q. Let me ask you this. You filed with the court an affidavit. It was filed May 25, 1978, and the affidavit is four pages signed by you and dated May 24, 1978. Is this, in fact, your signature?
A. That’s my signature.
Q. And in that affidavit you appear to state that subsequent to the name change of the company March 27, 1969, that’s when it was changed to Olympia Company, Inc.?
A. Yes.
Q. There were discussions about changing the name back to Olympia Roofing Company, Inc.
A. No question about that.
Q. But to your knowledge that was never done?
A. Never done.
Q. And you knew that was never done?
A. I had never been informed.

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Bluebook (online)
534 So. 2d 16, 1988 La. App. LEXIS 2034, 1988 WL 105493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olympia-roofing-co-v-henican-lactapp-1988.