Sawyer v. Boudreaux

569 So. 2d 123, 1990 La. App. LEXIS 2293, 1990 WL 157527
CourtLouisiana Court of Appeal
DecidedOctober 16, 1990
DocketNo. 89 CA 1031
StatusPublished
Cited by2 cases

This text of 569 So. 2d 123 (Sawyer v. Boudreaux) 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
Sawyer v. Boudreaux, 569 So. 2d 123, 1990 La. App. LEXIS 2293, 1990 WL 157527 (La. Ct. App. 1990).

Opinion

CARTER, Judge.

This is an appeal from a trial court judgment granting a motion for summary judgment.

FACTS

On June 21, 1980, plaintiff, Walter F. Sawyer, was a guest passenger in his own vehicle, which was being operated by Glynn L. Rhodes. The Sawyer vehicle was proceeding east on a two-lane stretch of U.S. Highway 90 in Assumption Parish. As the Sawyer vehicle approached the intersection with La. Highway 662, it came upon a vehicle in its lane of travel, operated by an unknown driver, which was attempting to make an illegal left turn from U.S. Highway 90 onto La. Highway 662.

Rhodes was not able to bring the vehicle to a stop behind the unknown driver’s car, nor was he able to travel on the right shoulder of U.S. Highway 90 because an abandoned vehicle occupied the shoulder .near the intersection. Therefore, Rhodes steered the vehicle into the westbound lane of U.S. Highway 90 and collided with a large truck owned by Santa Fe Engineering & Construction Company and operated by Dallas J. Boudreaux.

On December 22, 1980, plaintiff entered into a settlement and release with Rhodes and Aetna Casualty & Surety Company (Aetna). Thereafter, on June 22, 1981, Sawyer filed suit for damages against Dallas J. Boudreaux, Santa Fe Engineering & Construction Company (Santa Fe), and the State of Louisiana through the Department of Transportation and Development (State), among others. Thereafter, numerous third-party and reconventional demands were filed.

On June 4, 1982, the instant suit was consolidated with a suit filed by Rhodes against many of the same defendants. On August 9, 1982, Boudreaux and Santa Fe filed a motion for summary judgment against plaintiff. On January 24, 1983, the trial court rendered judgment, granting the motion for summary judgment and dismissing plaintiffs claims against Boudreaux and Santa Fe. No appeal was taken from this judgment.

On February 9, 1989, the State filed the instant motion for summary judgment, requesting that plaintiffs claims against it be dismissed. Attached to its motion was a copy of the police report and the affidavit of the investigating officer. In support of its motion, the State argued that, when Sawyer settled with Rhodes and Aetna, he did not reserve his rights against any other defendants. As a result, the State reasoned that, under LSA-C.C. art. 2203, the release of Rhodes (a solidary obligor) without a reservation of rights as to the other defendants, discharged all solidary obligors from liability.1

After a hearing, the trial court rendered judgment, granting the State’s motion for summary judgment and dismissing plaintiff’s claims against the State.

From this adverse judgment, plaintiff appeals, contending that the trial court erred in granting the State’s motion for summary [125]*125judgment.2

SUMMARY JUDGMENT

LSA-C.C.P. art. 966 provides, in pertinent part:

A. The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed.
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B. ... The adverse party may serve opposing affidavits prior to the date of the hearing. 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.

LSA-C.C.P. art. 967 provides, in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

In McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308 (La.App. 2nd Cir.), writ denied, 457 So.2d 1194 (La.1984), the court stated:

That portion of an affidavit or deposition not based on personal knowledge should not be considered in deciding a motion for summary judgment. Statements in affidavits or depositions of the opinion or belief of an expert based on his special training and experience do not meet the requirement of personal knowledge. A statement of opinion is not sufficiently certain or probative to justify a conclusion that there is no issue of fact which should be determined by a trial on the merits. Expert opinion statements or testimony requires evaluation by the trier of fact as to probative value. A motion for summary judgment is not the proper vehicle for the trier of fact to evaluate evidence and determine the facts which are disputed. See Nelson v. Marrus, 343 So.2d 740 (La.App. 2d Cir. 1977); McWhiney v. Travelers Ins. Co., 343 So.2d 736 (La.App. 2d Cir.1976); Hidalgo v. General Fire & Casualty Company, 254 So.2d 493 (La.App. 3d Cir. 1971); Warden v. Southwest Louisiana Hospital Association, 300 So.2d 590 (La.App. 3d Cir.1974).

452 So.2d at 310. This court in Brock v. Newman, 543 So.2d 84 (La.App. 1st Cir.), writ denied, 548 So.2d 1251 (La.1989), followed the approach set forth in McCoy. See also Weston v. Raymond Corporation, 531 So.2d 528 (La.App. 5th Cir.), writ denied, 533 So.2d 360 (La.1988).

It is well settled that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Louisiana National Bank v. Slaughter, 563 So.2d 445 (La.App. 1st Cir.1990); Kerwin v. Nu-Way Construction Service, Inc., 451 So.2d 1193 (La. App. 5th Cir.), writ denied, 457 So.2d 11 (La.1984); Landry v. Brandy, 389 So.2d 93 (La.App. 4th Cir.1980); Cooper v. Anderson, 385 So.2d 1257 (La.App. 4th Cir.), writ denied, 393 So.2d 738 (La.1980). The burden is upon the mover for summary judgment to show that no genuine issue of material fact exists, and only when reason[126]*126able minds must inevitably conclude that mover is entitled to judgment as a matter of law is summary judgment warranted. Frazier v. Freeman, 481 So.2d 184 (La. App. 1st Cir.1985); Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner and Smith, 435 So.2d 1058 (La.App. 1st Cir. 1983).

On motion for summary judgment, it must first be determined that the supporting documents presented by the moving party are sufficient to resolve all material issues of fact; if they are not sufficient, summary judgment should be denied. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); Frazier v. Freeman, 481 So.2d at 186; Nathans v. Vuci, 443 So.2d 690 (La.App. 1st Cir.1983). Summary judgments are not favored, and any reasonable doubt should be resolved against the mover. Dupuy v. Gonday, 450 So.2d 1014 (La.App. 1st Cir.1984).

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569 So. 2d 123, 1990 La. App. LEXIS 2293, 1990 WL 157527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sawyer-v-boudreaux-lactapp-1990.