STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-533
PATRICK COLLINS, DAWN COLLINS AND SOUTHSHORE BUILDING SERVICES, INC.
VERSUS
CONTINUUM RESTORATIONS SERVICES, L.L.C. AND GUIDEONE NATIONAL INSURANCE COMPANY, ET AL
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. C-202010405F HONORABLE DAVID M. SMITH, DISTRICT JUDGE
GARY J. ORTEGO JUDGE
Court composed of Van H. Kyzar, Candyce G. Perret, and Gary J. Ortego, Judges.
AFFIRMED. Edward C. Vocke, IV 3000 18th Street Metairie, LA 70002 (504) 837-1304 COUNSEL FOR PLAINTIFFS/APPELLANTS: Southshore Building Services, Inc. Patrick Collins Dawn Collins
Richard J. Wolff 3801 Canal Street, Suite 202 New Orleans, LA 70119 (504) 421-3277 COUNSEL FOR PLAINTIFFS/APPELLANTS: Southshore Building Services, Inc. Patrick Collins Dawn Collins
Linda K. Ewbank Hammond, Sills, Adkins, Guice, Noah & Perkins, LLP 1500 N 19th Street, Suite 301 Monroe, LA 71201 (318) 324-0101 COUNSEL FOR DEFENDANT/APPELLEE: Acadia Parish School Board
Shonda D. Legrande Richard R. Montgomery P. O. Box 14503 Des Moines, IA 50306 (337) 417-0786 COUNSEL FOR DEFENDANTS/APPELLEES: Continuum Restorations Services, L.L.C. Guideone National Insurance Company
Todd Michael Ammons Stockwell, Sievert P. O. Box 2900 Lake Charles, LA 70602 (337) 436-9491 COUNSEL FOR DEFENDANT/APPELLEE: H & H Chemical Co. ORTEGO, Judge.
Plaintiffs/Appellants appeal the trial court’s judgment granting Defendants/
Appellees’ motions for summary judgment finding injured plaintiff was a
subcontractor on a particular work project, thus relegating Plaintiff’s injury claims
to workers’ compensation. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Appellants, Patrick Collins (“Mr. Collins”), Dawn Collins and Southshore
Building Services, Inc. (“Southshore”) (collectively “Appellants”), filed a petition
for damages in this matter on June 4, 2020, for injuries and damages they claim to
have suffered due to the negligence of three defendants, two of which are relevant
to this appeal: the Acadia Parish School Board (“Acadia”) and Continuum
Restoration Services, LLC (“Continuum”). Specifically, Appellants allege that on
June 5, 2019, Mr. Collins slipped and fell in a chemical solution on a job site at
Crowley High School (“CHS”). This accident occurred on Mr. Collins’ third day of
work stripping, waxing, and sealing the floors of CHS’s common areas.
The facts show that Mr. Collins owns Southshore, and that his son, Andrew
Collins, was approached by Continuum in regard to a job striping and waxing the
floors of CHS. In response, Southshore submitted three bid proposals to Continuum
for its work on the project as a contractor. Continuum did not sign these proposals
but instead asked Mr. Collins to attend a meeting with Acadia, the political
subdivision that manages the high school. At the meeting, Mr. Collins contends he
negotiated directly with Andrew Wynn, an Acadia employee, who agreed that
Southshore would provide stripping and waxing services for 50% of the school.
Acadia then asked Continuum to complete waxing and stripping services on the
other half of the school. However, Mr. Collins acknowledges that he never discussed payment for the floor-stripping work with any representative of Acadia. Again, and
notably, there were no written contracts executed between any of these parties.
On June 5, 2019, Mr. Collins slipped on a portion of the floor that was covered
in hazardous chemicals and received such severe burns that he required debriding
surgery, where skin was removed from his leg and placed over his chemically burned
skin. Mr. Collins claims that the chemicals on the floor that caused his injuries were
improperly mixed and poured by Continuum and that the chemicals themselves had
been supplied by Acadia. Mr. Collins also claimeed that he warned Acadia that the
chemicals were particularly hazardous, but the warning was ignored. Mr. Collins
also stated that Continuum had poured the improperly-mixed and dangerous
chemicals on the portion of the floor that had been allocated to Southshore to
complete. While Mr. Collins was in the hospital, the secretary at Southshore
submitted work invoices to Continuum. Mr. Collins contends that the secretary was
not aware of the meeting between Mr. Collins and Mr. Wynn; otherwise, he contends,
the invoices would have been sent to Acadia.
On June 22, 2019, during Mr. Collin’s recovery and after his company had
completed similar work on several other schools, Continuum requested that he sign
a lien waiver foregoing any lien that Southshore would have against Continuum for
the work performed, which was done in exchange for the final payment to
Southshore. The text of the lien waiver signed by Mr. Collins is as follows (emphasis
added):
The undersigned hereby certifies that he has examined and is authorized to execute this affidavit as the owner, and/or officer, as the case may be, of the below named vendor, lessor, laborer, supplier, consultant; subcontractor and/or contractor (hereinafter collectively referred to as The Contractor[)] of all labor and materials or other movables, and/or improvements in, on, over, under, to, for, or at the project listed hereinbelow.
2 In consideration for the payment to Contractor of the claim, the receipt of which is hereby acknowledged, Contractor waives any and all claims to liens which the Contractor may have on or affecting the project as a result of the claim, or for performing said labor and/or furnishing such materials or services. The Contractor further certifies that the last date on which the Contractor furnished any labor, materials or services included by the claim is shown below and that the Contractor also releases the project from any and every lien, charge or claim the Contractor may have on said date for work done, materials furnished, or upon any other ground whatsoever not covered by the claim growing out of or in any way connected with any construction on or at the project.
The Contractor further certifies and warrants that all labor and/or materials for the project have been paid in full for all labor and materials supplied to, for, and in way connected with any construction or repair of, or to, any building or portion of the project.
The Contractor: Southshore Building Services, Inc.
. . . .
Description of the project: Strip, wax, and seal floors at the following schools. . .
As noted above, on June 4, 2020, Appellants filed a petition for damages. On
May 22, 2023, Appellees filed identical motions for summary judgment seeking
dismissal of Appellants’ petition, pursuant to La.R.S. 23:1032, Louisiana’s Statutory
Employer provision. Acadia and Continuum specifically alleged they were the
statutory employers of Mr. Collins at the time of his accident and, therefore, are
statutorily immune from all of Appellants’ claims arising from this matter, as
Appellants’ claims fall within the exclusive remedies provided by workers’
compensation law.
As part of their motions for summary judgment, Appellees produced three
affiants, namely Mr. Wynn, Jeff Fields (a Continuum employee), and Hans Hergens
(a Continuum employee), to attest that a subcontractor relationship existed between
Continuum and Southshore regarding the floor-stripping project (“the project”) at
the Acadia schools. The affiants testified that only Continuum was paid directly by
3 Acadia; that Continuum was paid by the hours worked, whereas Southshore was
paid by the square foot completed; that Southshore sought payment only from
Continuum; and that Mr. Collins never discussed payment of the work with Acadia.
In turn, Appellants submitted an affidavit by Mr. Collins. They also included bank
statements showing that Southshore paid for its employees’ hotel rooms,
contradicting the affidavit of Mr. Hergens, who stated that Continuum paid for the
hotel rooms for the Southshore employees, to demonstrate that Continuum had no
control over Mr. Collins in the capacity of a statutory employer.
After briefing and hearing on Appellees’ motions, judgment was rendered by
the trial court in favor of the Appellees on November 17, 2023.1 Appellants now
appeal the trial court’s decision to grant Appellees’ motions for summary judgment.
ASSIGNMENTS OF ERROR
1. The district court abused its discretion by impermissibly weighing the evidence as well as discounting Mr. Collins’ [sic] evidence that contradicted appellees’ material facts.
2. The district court abused its discretion by disregarding [La.Civ.Code.] art. 1848 and allowing Acadia/Continuum to attack their own document.
3. The district court legally erred by making a credibility decision, particularly relating to Continuum and Acadia’s affiant.
STANDARD OF REVIEW
It is well settled that summary judgment shall be granted if “the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” La.Code
Civ.P. art. 966(A)(3); Van v. Ferrell, 45,977 (La.App. 2 Cir. 3/2/11), 58 So.3d 522.
1 Appellants subsequently filed a motion for new trial, claiming the trial court ruled contrary to the evidence when granting the summary judgments and requested the court to set aside its judgment and grant a new trial on the matter, which was heard by the court on January 29, 2024. After reviewing the briefs on the motion and oral arguments, the court denied Appellants’ motion for new trial on March 26, 2024.
4 In reviewing a trial court’s decision on a motion for summary judgment, this
court applies the de novo standard of review using the same criteria applied by the
trial court to determine whether summary judgment is appropriate. Samaha v. Rau,
07-1726 (La. 2/26/08), 977 So.2d 880.
DISCUSSION AND ANALYSIS ON THE MERITS
Trial Court’s Judgment:
The trial court granted Appellees’ motions for summary judgment, issuing
reasons from the bench. The trial court in particular noted that the lien waiver signed
by Southshore did not include language sufficiently clear to designate Southshore as
a contractor, instead of a subcontractor, stating:
All right. I’ve heard plenty and I’ve read the arguments contained in the briefs and everything. And while I did want to entertain some argument on the lien waiver, because when I was reading it I had the same thoughts, is that I don’t find that the lien waiver is indicative of Southshore being a contractor. It basically encompasses everybody, from sellers, vendors, contractors, subcontractors, everybody who looked at the property, walked on the property, blah, blah, blah, did anything on the property at all. So I don’t find that indicative of - - and without that being said, being no other evidence, I don’t find that there’s any other general - - genuine issues, so I’ll grant Continuum’s and the school board’s motions. (Emphasis added.)
Appellants’ Arguments:
Appellants argue that the judgments of the trial court should be reversed for
three reasons.
First, they argue the trial court abused its discretion by weighing the evidence
submitted by the Appellees against Mr. Collins’ sworn deposition and written
evidence. Appellants note it was uncontroverted that Continuum refused to sign the
bid proposals submitted by Mr. Collins. If these bid proposals to Continuum had
been accepted in writing, Mr. Collins’s company would have been a subcontractor
whose sole remedy would be the worker’s compensation. However, Continuum did
5 not sign any of the proposals and instead, brought Mr. Collins to the June 3 meeting,
where Appellants contend that Acadia agreed to alter Acadia and Continuum’s
original contract, and the fact that the original contract was between Acadia and
Continuum did not preclude a second contract between Acadia and Southshore. Mr.
Collins argues he contracted directly with Acadia during this June 3 rd meeting, and
it was Acadia and not Continuum who awarded him 50% of the project at CHS.
Appellants cite Circle, LLC v. M&L Engine, L.L.C., 23-63, (La. 3/28/23), 358 So.3d
40 (per curiam), in support of the proposition that a subsequent oral amendment of
a contract may render a matter unfit for summary judgment, as it may present issues
of material fact that must be decided by the factfinder at trial. Therefore, Appellants
argue that the lack of written contracts and the dispute as to who contracted with
whom requires a factfinder to make a credibility determination. Specifically, there
is a dispute here as to whether Acadia contracted with Southshore directly for 50%
of the project at CHS. Appellants contend the trial court clearly ruled that Mr.
Collins’ sworn testimony, unsigned proposed contracts, and production of the lien
waiver could not overcome evidence submitted by Acadia and Continuum, which is
an impermissible weighing of the evidence.
Second, Appellants argue that the lien waiver mentioned above was drafted
by either Acadia or Continuum and states in bold that Mr. Collins’s company is “The
Contractor.” This designation alone, on a notarized document, Appellants argue,
undermines Appellees’ argument that Mr. Collins is a subcontractor. Furthermore,
Appellants contend that the trial court clearly disregarded Louisiana law by allowing
Appellees to collaterally attack their own ambiguously written document, here the
lien waiver, in violation of La.Civ.Code art. 1848, which reads as follows:
Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted 6 to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.
Finally, Appellants assert that the affidavit of Mr. Hergens, shows that there
is a genuine issue of material fact that Mr. Collins’s company was a subcontractor
because, amongst other allegations, Mr. Hergens avers that Continuum paid for hotel
rooms used by Mr. Collins’s company and employees. However, Mr. Collins
presented proof under oath in the form of bank statements that Southshore paid those
bills without reimbursement. Thus, evidence was presented that Mr. Hergens is
either mistaken or perjuring himself in a contract dispute that lacks a written contract.
Therefore, Appellants argue that a genuine issue of material fact remains and was
disregarded by the trial court.
Appellees’ Arguments:
Acadia notes it entered into an oral contract with Continuum to complete work
on certain school buildings, including, but not limited to, the floor-stripping project
at CHS. Acadia contends that it contracted with Continuum to direct, control, and
provide all of the labor for the project of certain school buildings. Pursuant to this
agreement, Continuum furnished labor for the project and submitted a W-9 form to
Acadia, as well as the certificate of liability insurance for its work on the project.
Additionally, and in order for Continuum to fulfill its contractual obligations
with Acadia, Continuum subsequently hired Southshore, Mr. Collins’s company, as
a subcontractor, to provide additional labor to perform a portion of the total work
required to complete the project.
Appellees further note that Acadia and Continuum agreed that Continuum
would be compensated by labor hours performed by all workers on the project,
including Southshore. During this project, and as the work was completed on each
building, Continuum submitted invoices to Acadia, and these invoices included the
7 hourly-labor cost of the Southshore employees, among other contract laborers.
Appellees contends that no other entity or company, including Southshore,
submitted any invoices to be paid by Acadia, and that Acadia only paid Continuum
for work on this project.
Appellees argue there is no factual support for Appellants’ claim that
Southshore entered into a separate oral contract with Acadia. In fact, Acadia
contends it did not realize Mr. Collins was the owner of Southshore, and not an
employee of Continuum, until after the accident.2
Furthermore, Appellees argue that Mr. Collins admits he was contacted by
Continuum, not Acadia, to work on the project and sought payment from
Continuum, not Acadia, for the work performed. Additionally, Appellees note that
Mr. Collins and Southshore admitted it never discussed payment with Acadia, and
when Southshore decided to increase its rate per square foot because of the condition
of the floors, it informed Continuum, not Acadia. Additionally, Southshore
employees submitted hourly-time-sheet-forms to Continuum for their work on the
project.
Appellees note in their opposition to the motions for summary judgment that
Appellants objected to a portion of the affidavit of Mr. Hensgens, wherein he stated
that Continuum paid for the Southshore employees’ hotel rooms, which Appellees
acknowledge might have been stated in error. However, they contend that the
payment of the lodging is not a material fact in this matter, when all other evidence
and facts are considered.
2 While Mr. Collins may have spoken with Mr. Wynn during the June 3rd telephone meeting between Mr. Wynn, representatives of Continuum, and Mr. Collins, apparently other representatives of Acadia were unaware that Southshore was a separate entity from Continuum.
8 Appellees further note that Appellants only objected to the affidavits of Mr.
Wynn and Mr. Fields for the first time in their brief to this court. Furthermore,
Appellees contend that Appellants only objected to the entirety of Mr. Hensgens’s
affidavit, as opposed to only the portion it referenced for the first time in their brief
to this court. Appellees contend that pursuant to La.Code Civ.P. art. 966(D), these
objections are untimely, as Appellants did not first object before the trial court at the
summary judgment hearing.
Therefore, Acadia and Continuum contend that summary judgment was
appropriate, as there was no genuine issue of material fact as to Acadia and
Continuum’s statutory-employment relationship with Mr. Collins and his company
Southshore. Appellees argue that they are statutorily entitled to immunity from tort
liability under the “two contract” theory of immunity, and Appellants’ exclusive
remedy for damages for the injuries that Mr. Collins sustained while working on the
project is provided for in the Louisiana Workers Compensation Act (“LWCA”).
ON THE MERITS:
The statutory employer doctrine as applied to the relationship between Continuum, Acadia, and Southshore:
The central issue in this matter is whether summary judgment was
appropriately granted on the issue of whether Mr. Collins was employed as a
subcontractor or contractor on the project for Acadia, as it has direct bearing on
whether he may seek relief from Appellees or may only pursue relief through
workers’ compensation.
Whether or not a party is an independent contractor or employee is a factual
determination based on evidence of right of control and supervision. Elmore v. Kelly,
39,800 (La.App. 2 Cir. 7/29/05), 909 So.2d 36. In determining whether Mr. Collins
was a subcontractor of Continuum, we turn to the statutory-employer doctrine.
9 Louisiana has adopted a broad interpretation of the statutory employment
doctrine, expressly extending the employer’s compensation obligation and its
corresponding tort immunity to a “principal,” also known as a “statutory employer.”
Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Auth., 02-1072,
p. 7-8, (La. 4/9/03), 842 So.2d 373, 378.
Louisiana law defines a “statutory employer” in La.R.S. 23:1061(A)(2), the
text of which reads as follows:
A statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.
Louisiana Revised Statutes 23:1061(A)(1) establishes a principal’s
responsibility for workers’ compensation under the statutory employer doctrine,
providing in pertinent part:
[W]hen any “principal” as defined in R.S. 23:1032(A)(2), undertakes to execute any work, which is a part of his trade, business, or occupation and contracts with any person, in this Section referred to as the “contractor”, for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal, as a statutory employer, shall be granted the exclusive remedy protections of R.S. 23:1032 and shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him[.]
Under the LWCA, an employee injured in “an accident while in the course
and scope of his employment is generally limited to the recovery of workers’
compensation benefits as his exclusive remedy against his employer and he may not
sue his employer, or any principal, in tort.” Ramos v. Tulane Univ. of La., 06-487,
p. 3 (La.App. 4 Cir. 1/31/07), 951 So.2d 1267, 1269. A principal is entitled to tort
immunity, “but liable in workers’ compensation, anytime the principal contracts to
do any work, . . . and then contracts with another party for the performance of the
work.” La. Workers’ Comp. Corp. v. Genie Indus., 00-2034, p. 6 (La.App. Cir. 10 11/7/01), 801 So.2d 1161, 1165. Such tort “immunity is extended to all principals;
however, far removed from the direct employer of the injured worker[.]” Id.
Here, the “exclusive remedy” provision in La.R.S. 23:1032 confirms that
Appellants’ rights and remedies under the LWCA are “exclusive of all claims,
including any claims that might arise against his employer, or any principal or any
officer, director, stockholder, partner, or employee of such employer or principal
under any dual capacity theory or doctrine.” La.R.S. 23:1032 (A)(1)(b).
Louisiana Revised Statutes 23:1061 provides two bases for establishing a
statutory employer relationship. The first, known as the “two-contract theory,”
occurs when the principal is in the middle of two employment contracts. La.R.S.
23:1061(A)(2). The second occurs when there is a written contract acknowledging
the principal as the statutory employer. La.R.S. 23:1061(A)(3); Allen, 842 So.2d, at
378. The two-contract theory applies when: “(1) the [principal] enters into a contract
with a third party; (2) that pursuant to that contract, work must be performed; and
(3) that in order for the [principal] to fulfill its contractual obligation to perform the
work, the [principal] entered into a subcontract for all or part of the work performed.”
Genie Industries, 00-2034, p. 7 (La. App. 4 Cir. 11/7/01) 801 So.2d 1161, 1166.
“The purpose behind the two-contract theory is to establish a compensation
obligation on the part of the principal who contractually obligates itself to a party
for the performance of work and who then subcontracts with intermediaries whose
employees perform any part of that work.” Fee v. S. Packaging, Inc., 18-1364, p.
14 (La.App. 1 Cir. 5/24/19), 277 So.3d 787, 798.
In this matter, we find that Acadia is a statutory employer, as it is a principal
in the middle of two oral contracts. Continuum entered into an oral contract with
Acadia to complete the work required on the project on several of its school
buildings, including CHS. In order for Continuum to fulfill its contractual obligation 11 to Acadia, Continuum entered into an oral contract with Southshore to perform part
of the work. Mr. Collins’s meeting with Mr. Wynn notwithstanding, he admitted he
never discussed payment with Acadia, Southshore’s invoices for its work were only
submitted to Continuum, and it was paid by Continuum and not Acadia.
Thus, we find there were clearly two separate employment service contracts
in operation at the time of Mr. Collins’s accident. The first contract was between
Continuum and Acadia, in which Continuum agreed to provide certain floor-
stripping services to Acadia. The second contract was formed when Continuum
recruited Southshore to perform work to help Continuum satisfy its duties under the
initial contract with Acadia. Southshore sent proposals to Continuum, not Acadia,
for its work on the project. As acknowledged by Appellants, Southshore
subsequently invoiced Continuum and was paid by Continuum for its work.
Notably, Continuum’s oral contract with Acadia included the provision that
Continuum would be compensated by the labor hours performed by all workers
on the project. Continuum submitted a summary of all labor hours incurred for each
school building to Acadia for payment, including that of Mr. Collins and the other
Southshore employees, and no other entity or person submitted an invoice to be paid
by Acadia for work performed on the floor-stripping project. Contrarily, Southshore
was paid by Continuum for square footage of floor completed, rather than hours
worked. Additionally, representatives of Acadia stated that they were unaware that
Continuum had subcontracted with Southshore to perform work and had assumed
that Appellants were employees of Continuum, and Acadia paid only Continuum
directly.
Pursuant to the evidence, the law and jurisprudence outline above, it is clear
that there is no issue of genuine material fact that Continuum hired Southshore as a
subcontractor. It is also clear that the trial court’s judgment is not rooted in 12 credibility determinations or the weighing of the evidence, but rather in the fact that
neither Mr. Collins nor Southshore produced any evidence that a contract existed
between Southshore and Acadia, save for the inferences Mr. Collins made about the
June 3 meeting between the parties. Regardless, “[m]ere speculation will not defeat
a motion for summary judgment, and conclusory allegations, improbable inferences,
and unsupported speculation are insufficient to support a finding that a genuine issue
of material fact exists.” Kinch v. Our Lady of Lourdes Reg’l Med. Ctr., 15-603, pp.
7–8 (La.App. 3 Cir. 12/9/15), 181 So. 3d900, 905.
Thus, we find that Acadia and Continuum were the statutory employers of Mr.
Collins at the time of his accident, as Mr. Collins and his company, Southshore, were
subcontractors to the contract Continuum entered into with Acadia to complete the
work required on the project on several of its school buildings, including CHS.
Appellants’ additional specific arguments are addressed below.
Use of the word “contractor” in the lien waiver
Next, and regarding Appellants’ argument that the lien waiver designated
Southshore as a contractor.
The lien waiver at issue reads, in pertinent part, as follows (emphasis added):
The undersigned hereby certifies that he has examined and is authorized to execute this affidavit as the owner, and/or officer, as the case may be, of the below named vendor, lessor, laborer, supplier, consultant, subcontractor and/or contractor (hereinafter collectively referred to as The Contractor[)] of all labor and materials or other movables, and/or improvements in, on, over, under, to, for, or at the project listed hereinbelow.
In consideration for the payment to the Contractor of the claim, the receipt of which is hereby acknowledged, Contractor waives any and all claims to the liens which the Contractor may have on or affecting the project as a result of the claim, or for performing said labor and/or furnishing such materials or services. The Contractor further certifies that the last date on which the Contractor furnished any labor, materials or services included by the claim is shown below and that the Contractor also releases the project from any and every lien, charge or claim the Contractor may have on said date for work done, materials 13 furnished, or upon any other ground whatsoever not covered by the claim growing out of or in any way connected with any construction on or at the project.
The Contractor further certifies and warrants that all labor and/or materials for the project have been paid in full for all labor and materials supplied to, for, and in any way connected with any construction or repair of, or to, any building or portion of the project.
....
Description of the project: Strip, wax, and seal floors at the following schools
As to Appellants’ argument that the lien waiver is nominally designating
Southshore a “contractor,” we find that document explicitly defines “contractor” in
the first paragraph as “...vendor, lessor, laborer, supplier, consultant, subcontractor
and/or contractor[.]” That definition in the lien waiver was noted by the trial court
in its oral ruling on October 23, 2023, when it specifically found that the lien waiver
was not indicative of Southshore being a contractor in this matter.
We agree and find that a reading of the full text of the lien waiver does not
suggest that any different interpretation should be applied.
We further find that the lien waiver in and of itself does not address, clarify,
or establish the relationship of the parties in this matter, as the waiver clearly defines
“contractor” as inclusive of a subcontractor, and that it was being signed as evidence
that Southshore had been paid in full under the terms of its oral contract on the
project by Continuum and not Acadia. Finally, we find that Appellants’ argument
that the lien waiver is ambiguously written is clearly controverted by the other
evidence presented. Thus, this argument by Appellants is without merit.
14 Three affidavits submitted by Appellees
As to Appellants’ arguments regarding the alleged discrepancies in Appellees’
affidavits submitted, the record shows Appellants only timely objected to one
portion of one affidavit; specifically, the portion of the Mr. Hergens affidavit
attesting that Continuum paid for the hotels of Southshore’s employees. Despite the
objection, Appellants took no action to further depose Mr. Hergens, or the other two
affiants presented by Appellees as part of their objection/opposition. Regardless,
and after review of the record, we find that the discrepancy regarding who paid for
Southshore’s hotel rooms does not create a genuine issue of material fact regarding
the status of Mr. Collins’s employment relationship with Acadia and/or Continuum.
For the reasons stated above, we find Appellants are clearly subcontractors of
Continuum. As to Appellants’ other objections to the affidavits, we find that these
objections are untimely as Appellants failed to first make their objections before the
trial court. Thus, we will not consider those arguments. Therefore, we find this
argument by Appellants is without merit.
DECREE
For the reasons stated above, the trial court’s granting of judgments in favor
of Appellees/Defendants, Continuum Restoration Services, LLC, and the Acadia
Parish School Board, are affirmed. The costs of this appeal are assessed to
Appellants, Patrick Collins, Dawn Collins, and Southshore Building Services, Inc.
AFFIRMED.